General Criteria
Cases
DPP -v- John Costolloe
[2009] IECCA 28
Judgment by: Finnegan J.
Status of Judgment: Approved
Judgments by
Result
Finnegan J.
Other (see notes)
Notes on Memo: Applicant refused leave to appeal against sentence
COURT OF CRIMINAL APPEAL
43/07
Finnegan J.
de Valera J.
McMahon J.
DIRECTOR OF PUBLIC PROSECUTIONS
.v.
JOHN COSTELLOE
APPLICANT
Judgment of the Court delivered on the 2nd day of April 2009
by Finnegan J.
The applicant pleaded guilty to the possession of drugs for sale or supply contrary to the Misuse of Drugs Act 1977 as amended. The offence was committed on the 1st September 2004. He was sentenced to twelve years imprisonment with the last two years thereof suspended. A co-accused Séan Hanley was sentenced to ten years imprisonment. The circumstances of the offence are as follows.
On the 1st September 2004 Gardai carried out surveillance of a Volvo motor car. The applicant was the driver and the co-accused Séan Hanley a front seat passenger. The Gardai switched on the flashing blue light and an attempt was made by the Volvo to evade the Gardai. A package was thrown from the passenger window. This was recovered and was found to contain amphetamines with a value of approximately €45,000. The applicant was arrested and at interview exercised his right to silence. He did not co-operate with the Gardai. He exercised his right to silence under section 17 of the Criminal Justice (Drug Trafficking) Act 1996. On the second day of his trial he changed his plea to one of guilty.
At sentencing the applicant relied upon a number of reports. He informed the Probation Service, according to the report, that his passenger, Sean Hanley, had no knowledge of the drugs and that the applicant had instructed him to throw them from the car. That report contained a risk assessment: the applicant if he is to reduce the risk of re-conviction in the future must disassociate himself from his companions and address problems in relation to employment and addiction. A psychiatric report was submitted from which it appears that while he had been a drug user and had difficulties with suppliers in relation to monies owed for drugs he was off cocaine at the time of the offence.
The applicant was born on the 16th March 1981 and is now aged twenty seven years. He has had a partner for the past eight years and they have two children aged five years and three years.
He has nine previous convictions including the following:-
15th June 2006: section 49 Road Traffic Act 1961.
15th March 2006: section 6 Criminal Justice (Public Order) Act 1994: sentenced to two months imprisonment suspended for twelve months.
26th October 2004: Criminal Justice (Public Order) Act 1994.
10th March 2004: section 2 Non Fatal Offences against the Person Act 1997 assault: sentenced to community service one hundred and twenty hours.
10th March 2004: Criminal Justice (Public Order) Act 1994.
18th November 1998: section 112 Road Traffic Act 1961: sentenced to community service two hundred hours.
In the course of the sentencing hearing counsel on behalf of the applicant relied on the applicant’s plea of guilty. He offered the opinion that there was a statable defence. He concluded as follows:-
“As I say, the only mitigating factor that can be raised at all is the fact that he has put his hands up, to his own detriment and I hasten to add, and I can tell you on the record I am not one bit happy about it, but there that is the reality.”
The learned trial judge in these circumstances was required to have regard to section 27(3B) of the Misuse of Drugs Act 1977 as inserted by section 5 of the Criminal Justice Act 1999. On this appeal on behalf of the applicant it was submitted that the sentencing process was truncated and that without sufficient enquiry the learned trial judge held that none of the relieving features of section 27(3C) applied. Further the learned trial judge failed to give sufficient weight to the mitigating circumstance relied on and failed to give appropriate credit for the plea of guilty.
The learned trial judge’s ruling on sentence is indeed pithy. In relation to mitigating circumstances he had this to say:-
“I can find no mitigating circumstances. Mr Costelloe went to trial. He changed his plea from that of not guilty to guilty on the second day of the trial. He, in his interviews, was of no great assistance to An Garda Siochána. I take on board what has been said by his partner, Ms Wyse, and I can understand his father’s upset. I have before me a Probation Service Report of the 5th February 2007 which sets out pretty fairly, I think, Mr Costelloe’s background and current circumstances. It also sets out that he owed money to drug dealers; but unfortunately people who owe money to drug dealers are all the more vulnerable to be used as mules to ferry drugs from point A to point B, which seems to be part of what was going on on this occasion.
Because of the value of the drugs being at the bottom range of a section 15A offence, although it is a multiple of the €13,000 nominally, I will impose a sentence of twelve years imprisonment and I will suspend the last two years of that, the condition being that he keep the peace and be of good behaviour towards the people of Ireland on his own bond of €100, that two years to be suspended for a period of two years, his bond to be taken before the Governor at whatever prison he is then incarcerated in.”
The maximum sentence for an offence under section 15A as provided for in section 27 as amended of the Misuse of Drugs Act 1977 is one of life imprisonment. However section 27 as amended goes on to provide as follows:-
“(3B) Where a person (other than a child or young person) is convicted of an offence under section 15A the court shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than ten years imprisonment.
(3C) Subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than ten years imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matters it considers appropriate including –
(a) whether that person pleaded guilty to the offence and, if so, (i) the stage at which he indicated the intention to plead guilty and (ii) the circumstances in which the indication was given, and,
(b) whether that person materially assisted in the investigation of the offence.”
The court is not confined to consideration of the matters mentioned at (a) and (b) in subsection (3C) but will have regard to all the circumstances which are exceptional and specific relating to the offence. It is likewise the case that all circumstances which are exceptional and specific relating to the offender are to be regarded. In this case, in the view of the court, the only relevant circumstance that could be relied upon is the plea of guilty. As is clear from the extract from the sentencing ruling quoted above this circumstance was indeed taken into account by the learned trial judge and he did not regard it as an exceptional and specific circumstance for the purposes of section 27(3C). The learned trial judge was correct in this. In Director of Public Prosecutions v Ducque, unreported, Court of Criminal Appeal 15th July 2005 Geoghegan J. said:-
“In considering whether the latter subsection applies or not, a plea of guilty without more and especially a late plea could not normally be taken into account because it would rarely if ever constitute ‘ exceptional and specific circumstances’.”
The approach to be adopted by the sentencing judge in relation to this offence appears clearly from the judgments of this court in a number of cases including Director of Public Prosecutions v Ducque, Director of Public Prosecutions v Chipi Renald, unreported 23rd November 2001, Director of Public Prosecutions v Galligan, unreported 23rd July 2003 and Director of Public Prosecutions v Lernihan, unreported 18th April 2007. The sentencing judge’s first task is to arrive at the appropriate sentence. The amount or value of the drugs is relevant. The provisions of section 15A make clear that the legislature regard this offence as serious in that the maximum sentence provided for is one of life imprisonment and subject to subsection (3C) the presumptive minimum sentence is one of ten years imprisonment. Even where exceptional and specific circumstances exist which would render the statutory minimum term of imprisonment unjust the presumptive minimum sentence cannot be ignored. Bearing the statutory provisions in mind a sentencing judge must first determine the appropriate notional sentence. In so doing he must bear in mind the statutory provisions. He must have regard to the circumstances of the offence and the particular offender. This requires consideration of circumstances which aggravate or mitigate the offence and circumstances relating to the offender relevant in mitigation of sentence. If the resulting sentence is a term of ten years or greater then that is the sentence to be imposed. Only if the notional sentence is less than ten years will it be necessary to consider section 27 subsection (3C).
In this case the learned trial judge in arriving at an appropriate sentence expressly had regard to the value of the drugs. He noted the applicant’s lack of co-operation with the Gardai at interview. He had regard to the evidence of the applicant’s partner Ms Wyse and of his father. He had regard to the applicant’s personal circumstances as disclosed in the Probation Service Report and a psychiatrist’s report. Finally he had regard to the plea of guilty and the time at and circumstances in which it was entered. He having carefully considered these matters the court can find no error of principle in the sentence in fact imposed.
The fact that the applicant was accepted by the learned trial judge as being “a mule” is a factor to be taken into account in determining the appropriate sentence. The fact that he owed money for drugs supplied to him is also a factor to be taken into account. The learned trial judge did not regard the late plea of guilty having regard to the time at which it was entered as a mitigating factor for the purposes of section 27(3C). The learned trial judge gave no reason for suspending two years of the sentence. The late plea or the nature of the applicant’s involvement in the drugs industry as a mule may explain the suspension of the last two years of the sentence imposed. However it must be borne in mind that a mule plays an important part in the drugs industry and without the mule’s involvement those involved at a more significant level would be less likely to escape detection, prosecution and conviction. The role of the mule is important and significant to those who operate at a higher level. However as the suspension represents a significant concession to the applicant this court will not interfere with the same notwithstanding that the basis for the same is unclear. The court is satisfied that the sentence imposed is appropriate having regard to the applicant’s involvement, the circumstances of the crime and the applicant’s circumstances and accordingly the sentence imposed is not in error of principle.
On behalf of the applicant there were available in court three testimonials. The learned trial judge refused to have regard to the same and confined himself to oral testimony on oath together with the Probation Report and the psychiatrist’s report. While such testimonials are frequently received and considered on consent, the learned trial judge was entitled to confine his consideration to evidence on oath and the reports admitted and to exclude from consideration the written testimonials.
On behalf of the applicant it is submitted that the sentence imposed on him is disproportionate to that imposed upon his co-accused who received a sentence of ten years imprisonment. It is a settled principle of sentencing that persons who have been parties to the commission of the same offence should, all other things being equal, receive the same sentence. It is equally well settled that difference in the degree of involvement in the offence and the personal characteristics of the co-accused such as age, background, previous criminal history and general character will justify a different sentencing outcome. People (D.P.P.) v Poyning [1972] I.R. 402 and People (D.P.P.) v Conroy (No. 2) [1989] I.R.160. It is irrelevant that the sentences may be imposed by the same court at the same time or by a different court or at a different time.
The court has had the benefit of the transcript of the sentencing hearing which followed the conviction of the co-accused Séan Hanley. Each co-accused was sentenced by a different court. The applicant was sentenced on the 26th February 2007 and Séan Hanley on the 10th June 2008. Séan Hanley gave an account of his involvement consistent with innocence but the same was not accepted by the jury. His account was that he was coming to Dublin for a wedding and that he got sick on the way. He met the applicant who drove him to Dublin. In Dublin he was not well enough to attend the wedding and returned to Limerick with the applicant. He was unaware of the presence of the drugs. It is of some significance that the applicant’s account exonerated Séan Hanley from any guilty involvement save and except that he was asked by the applicant to throw the drugs from the car. Having regard to the fact that Séan Hanley was found guilty it is reasonable to treat the co-accuseds as having equal involvement in the offence. There are differences in the personal circumstances of each of the co-accused. Séan Hanley was aged forty eight years at the date of sentence. He had then previous convictions in the period 1980 to 2006. A number of the offences were precipitated by his grief reaction to his son being killed and which killing led to a conviction for manslaughter. He suffers from a number of physical and psychiatric ailments which are significant and which will make his time in prison particularly difficult. One is a prolonged grief reaction to the death of his son which had resulted in admissions to a psychiatric hospital. He suffers from diabetes which in his case reduces his life expectancy. In his history there were a significant number of attempts at suicide. He continued to be at a high risk of completed suicide. Without going into more detail these personal circumstances are matters which the sentencing judge could take into account and which distinguish him from the applicant. In addition the sentencing judge was apprised of the sentence imposed on the applicant. These circumstances justify the very minor discrepancy between the sentences imposed on each of the co-accused.
Having regard to the foregoing the court refuses the applicant leave to appeal.
O’Brien v. Governor of Limerick Prison
[1997] 2 I.L.R.M. 349 (SC)
O’Flaherty J
On 17 December 1996, the court allowed the appeal of Michael O’Brien against the judgment and order of the High Court (Geoghegan J) of 31 July 1996; the court ordered his release pursuant to Article 40.4 of the Constitution and said it would give its reasons later. Geoghegan J held that the applicant’s detention was lawful but he thought it desirable that an appeal should be brought to the court with some degree of expedition because of a lack of certainty in the law as a result of a number of decisions which he found difficult to reconcile.
There follow the reasons for the court’s decision to allow the appeal and order the release of the appellant.
Background facts
The appellant appeared before Lavan J at the Central Criminal Court on 18 June 1993, when he pleaded guilty on a count of burglary as well as a count of aggravated sexual assault. On that date he was sentenced to ten years’ imprisonment on each of the counts, such sentences to be concurrent and to date from 18 June 1993. The learned trial judge went on to order that the last six years of the said sentence should be suspended. The relevant part of his order was as follows:
To be imprisoned for ten years on each of counts one and three such sentences to be concurrent and to date from 18 June 1993, and the court doth further order that the last six years of the above sentence be suspended on condition that the accused enters a bond in the sum of £100 to keep the peace and be of good behaviour towards all the people of Ireland from 17 June 1997 to 17 June 2003, and further that he will not attend at the village of Doon or the townland of Kilmoylan in the County of Limerick upon his release from custody on 17 June 1997, and further that on the commission by the accused of any offence, either while in custody or during the six years’ suspension, the accused will come up to serve the balance of his sentence suspended upon him entering this recognisance, [and] the accused acknowledged himself so bound.
From a perusal of the transcript of proceedings at the trial court (reproduced in the judgment of Geoghegan J) it is quite clear that Lavan J intended that the accused would serve four years, without any remission.
The accused did not appeal to the Court of Criminal Appeal. Instead, he asserted that the custodial part of his sentence, viz. four years, should attract the usual remission of one quarter. It was conceded, in the course of the hearing in this Court, that if that contention was correct then he would be entitled to a quarter remission and should be set free.
Rules for the Government of Prisons 1947
It is agreed on both sides that this case is concerned with the proper construction of Rule 38(1) of the Rules for the Government of Prisons 1947, which were made pursuant to the Prisons (Ireland) Act 1907, s. 1 of which is as follows:
Provision may be made by prison rules for enabling a prisoner sentenced to imprisonment, whether by one sentence or cumulative sentences, for a period prescribed by the rules, to earn by special industry and good conduct a remission of a portion of his imprisonment, and on his discharge his sentence shall be deemed to have expired.
Rule 38(1) provides:
A convicted prisoner sentenced to imprisonment, whether by one sentence or cumulative sentences, for a period exceeding one calendar month, shall be eligible, by industry and good conduct, to earn a remission of a portion of his imprisonment, not exceeding one-fourth of the whole sentence, provided that the remission so granted does not result in the prisoner being discharged before he has served one month.
The question was whether the appellant was entitled to remission of one quarter on the custodial part of his sentence, or whether the effect of the order of the Central Criminal Court was that he had to serve a full term of four years without remission. That in turn raised for debate and resolution whether, if that was the effect of the order, it entrenched on the entitlement of the executive to grant a remission of punishment, pursuant to its powers under Article 13.6 of the Constitution.
The suspended sentence
It is not proposed to set forth here the history of the suspended sentence. It has been done by Professor Osborough in his article: ‘A Damocles’ Sword Guaranteed Irish’(1982) Irish Jurist 221. As the title to the article indicates, the development of the suspended sentence was an invention of the Irish judiciary.
The use of a straightforward suspended sentence is so well established in our legal system as not to require any elaboration here except to note that it is obviously a very beneficial jurisdiction for judges to possess. However, in the 1960s there emerged a variant of the suspended sentence which was that the latter part of it would fall to be suspended in certain circumstances and, nowadays, it is very common for sentences to carry a proviso that the latter part of it will be suspended. The court does not propose to pass any general judgment on the desirability, or otherwise, of this jurisdiction: except to note that it is there and provided it is used for some tangible purpose such as to effect the reintegration of the accused into society, or to protect certain members of society from certain forms of crimes, or some such object, the matter should be left reside in the individual discretion of the judge of trial being subject, of course, to the appellate jurisdiction of the Court of Criminal Appeal to order otherwise.
A particular type of part suspended sentence, for which Butler J of the High Court is said to have been responsible, took the form that the prisoner was sentenced to a period of imprisonment but the trial judge would direct that, after he had served an initial period, he should be brought back before the court and that, in the event of his progress being satisfactory, the trial judge would consider suspending the balance of the sentence. This form of order was held to be undesirable by the Court of Criminal Appeal in the case of People (DPP) v. Cahill [1980] IR 8, but when the question was revisited, this Court in People (DPP) v. Aylmer (1986) [1995] 2 ILRM 624 upheld the validity of this form of order. The desirability of such form of order was touched upon only to a degree in some of the judgments in the latter case.
Walsh J (at p. 630) pointed out that the power of the executive is a power to commute sentences, not to suspend them. He went on to say:
As for the suggestion that the late Butler J’s order would in some way impede the executive from exercising its power of commuting a sentence, I think it was abundantly clear the effect of the order was that at the end of the 36 months [that was the period specified in the case] the appellant had the right to apply to the court for a suspension. It was clear that the order postulated the continued existence of the sentence. There is no way in which it could be construed as a direction expressed or implied to the executive not to exercise the powers of commuting the sentence. The sentence imposed by Butler J in no way involved an encroachment by the judicial arm of government upon the executive power. The sole power to impose a sentence is vested in the judicial arm of government and the sole arm to attach conditions to it is the judicial arm. The executive cannot impose a sentence of any description nor can it attach any conditions to a sentence. Its power in respect of sentences is one of commuting and remitting sentences imposed by a court exercising criminal jurisdiction.
But the hallmark of the type of suspended sentence imposed by Butler J was that the judiciary retained seisin of the case. The prisoner was to be brought before the trial judge again on a specific date and the trial judge was to decide what was to be done.
The court here deals with a different form of suspended sentence. Here the trial judge has disposed of the case by imposing a sentence which consists of a period of imprisonment followed by a period during which the imprisonment is suspended.
The judge is functus officio. The executive power to commute the sentence remains intact. But it is hard to see how the executive power of remission for good conduct under the Rules for the Government of Prisons 1947, may properly be exercised. It cannot be exercised in respect of the initial period of imprisonment without defeating the clear intention of the trial judge. If, on the other hand, it is to be exercised in respect of the whole sentence a well behaved prisoner may not be in prison long enough to earn any remission. This can hardly have been the intention of the legislature in enacting the Prisons (Ireland) Act 1907, or of the minister in making the Rules for the Government of Prisons 1947.
Another paradox follows from the form of sentence in the present case. If the prisoner were to be released after four years he would undoubtedly have the ‘sword of Damocles’ in the form of a suspended sentence of six years hanging over him in the event of his committing a further crime. But would he have a ‘credit’ of one year’s remission to set off against this? It is not surprising that this form of sentence has created difficulties for judges.
In State (Beirnes) v. Governor of the Curragh Military Detention Barracks [1982] ILRM 491 Carroll J was concerned with a sentence which was imposed by the Special Criminal Court in the following terms:
… in respect of the offences upon which Patrick Beirnes stands convicted he be imprisoned for a period of ten years on each of counts one and two, the said sentences to be concurrent and to date from 1 March 1977, the final four years of such sentences suspended on the condition that he be of good behaviour towards all the people of Ireland and does not consort with known criminals and further that he will come up at any time within the said ten years to serve the said final four years of the said sentence of the court this day imposed upon him if called upon to do so.
Carroll J, who was dealing with a regulation made under a different instrument but which was to the same effect as regards the granting of remission, held that prima facie the prosecutor was entitled to be released after six years and the suspension of the last four years of the sentence was not dependant in any way on his behaviour during the first six years. She held that it could not have been in the judgment of the Special Criminal Court that any pronouncement in relation to remission would mean, for example, that remission earned during the six year period, could only be applied to the four year suspended sentence if the prosecutor was called on to serve it.
The learned judge, having referred to Cahill’s case at p. 11, concluded (at p.493):
Therefore it would not have been permissible for the Special Criminal Court to seek to regulate the remission applicable to the sentence imposed by it.
The Supreme Court appears to have taken a different view in State (Cronin) v. Governor of Portlaoise Prison Supreme Court, 10 November 1967 and to have held that the relevant period for considering questions of remission was the whole length of the sentence including both the custodial and the suspended parts. But, unfortunately, there are no judgments extant in that case. Moreover, it is clear that the case was merely an ex parte application and that the court had not the advantage that the members of the present court have had of hearing the matter fully argued.
Conclusion
At the heart of what the court had to decide in this case was whether the direction by the trial judge that the appellant was to serve four years without remission breached Article 13.6 of the Constitution which provides:
The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities. (cf. s. 23 of the Criminal Justice Act 1951)
It needs to be emphasised that the learned trial judge had the best of motives in making the order that he did because he was desirous of giving the appellant a chance but, equally, he was determined that he should serve a realistic sentence. The course that he proposed met with the approbation of the accused’s then counsel at the trial court. If the learned trial judge had used a formula, such as that which had been used by Butler J and which would have made clear that he was retaining seisin of the case, then there would have been no implied clash with the executive’s entitlement to grant remission of sentence. This Court is satisfied that when the learned trial judge, having suspended six of the ten years’ imprisonment imposed by him, indicated that that was all the remission the accused was going to get, he did not mean to pre-empt the executive’s power of remission but rather to indicate that the accused had received every leniency to which he could possibly be entitled. Nevertheless, the fact remains that the form of order made by the learned trial judge creates very great difficulties for governors of prisons and other persons who have to administer the system of remission on the grounds of good conduct created by the Prisons (Ireland) Act 1907 and the Rules for the Government of Prisons 1947.
It is necessary to emphasise that the matter comes before this Court on an application for release under Article 40.4 of the Constitution. This Court is not in the position of the Court of Criminal Appeal which could replace the order of the Central Criminal Court by an order which it considered more appropriate. Our only task must be to decide whether at the time of his application to court the appellant was being detained in accordance with law.
The court’s problem was that the Prisons (Ireland) Act 1907, and the Rules for the Government of Prisons 1947, do not appear to contemplate a sentence of imprisonment such as that imposed in this case. The 1907 Act provides that provision may be made by prison rules for enabling a prisoner ‘sentenced to imprisonment’, for a period prescribed by the rules, to earn by special industry and good conduct a remission of a portion of his ‘imprisonment’. This clearly contemplates that the period of imprisonment should be identical with the period of the sentence. Likewise the Rules for the Government of Prisons 1947, contemplate that the period of the sentence should be identical with the period of the imprisonment. Rule 38(1) of the rules provides as follows:
A convicted prisoner sentenced to imprisonment … shall be eligible, by industry and good conduct, to earn a remission of a portion of his imprisonment.
…
Moreover the Act goes on to provide that on the discharge of a prisoner ‘his sentence shall be deemed to have expired’. Such a provision appears to be inconsistent with the period of imprisonment remaining suspended over a prisoner’s head after his release pursuant to the provisions of the rules and the Act.
The learned trial judge intended to impose a sentence of ten years’ imprisonment of which the last six years were to be suspended, unless something unexpected took place. The real question is whether a sentence, in this form, can properly be reconciled with the provisions of the Prisons (Ireland) Act 1907, and the Rules for the Government of Prisons 1947. In the opinion of this Court such a sentence cannot be reconciled with the Act and with the rules and should not therefore be imposed. At the same time the order of the learned High Court judge must be regarded as valid insofar as it imposed a sentence of four years’ imprisonment. That, accordingly, is the period of imprisonment in respect of which remission must be calculated. As already related, it was conceded that if that contention was correct then the appellant had earned his remission of one quarter for good conduct and was entitled to be set free. In these circumstances, since the court was not satisfied that the appellant was being detained in accordance with law it directed his release under Article 40.4 of the Constitution.
People (DPP) v Jones
[2017] IECA 113
JUDGMENT of the Court delivered on the 6th day of April 2017 by
Mr. Justice Hedigan
Introduction
1. This is an appeal by the Director of Public Prosecutions on the basis that the sentence imposed was unduly lenient. The respondent entered a guilty plea to the offence of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 on the 11th December, 2015. The respondent was sentenced by His Honour Judge John Aylmer in the Dublin Circuit Criminal Court on the 24th February, 2016, to 18 months imprisonment suspended for 18 months. There was also a charge of assault causing serious harm contrary to s. 4 for which a nolle prosequi was entered.
2. The suspension was on the following conditions. The respondent enter into a bond of €100, keep the peace and be of good behaviour for a period of 18 months and pay to the victim, within four weeks, compensation of €8,000.
The Circumstances of the Offence
3. In the early hours of the morning on the 20th July, 2014, in the Palace Night-club the respondent struck Mr. Brian Murphy in the face with a pint glass. It was disputed whether the victim was acting in an “annoying” manner and making provocative gestures towards the respondent. The injured party denied this but two of the prosecution’s civilian witnesses said there had been prior interaction between the parties.
4. The glass hit the victim around his left eye. He was taken to St. James’s Hospital for emergency treatment. The incident and injury resulted in scarring, permanent loss of vision in his left eye and psychological trauma. He underwent five operations under general anaesthesia. He will need at least one more.
5. A victim impact statement was read to the Court. It included details of the devastating impact the injury had on the victim who was studying medicine at the time. An updated victim impact statement has been handed into Court.
6. The respondent remained at the scene and was cautioned, arrested and taken to Kevin Street Garda Station. He admitted to striking the victim. He made admissions both at the scene and at the Garda Station answering all questions put to him. He stated that the injured party “came close, he made the cut gesture again, that’s when I instinctively threw my right hand at him, I was completely unaware that I was holding a pint glass at that moment, and after that’s it’s quite a blur, rush of adrenalin”. The respondent expressed remorse to the injured party several times.
The Respondent’s Personal Circumstances
7. At the time of the incident the respondent was 25 years old with no previous convictions. He had a degree in business and was working in a bank and taking banking exams. He worked from the age of 16 and put himself through college where he achieved a first class honours degree. He had €8,000 compensation with him at the sentencing hearing. At the time he was in a relationship and they were expecting a child in July, 2016. He has since had the baby. As a consequence of his conviction he no longer works in the same employment but has found work in another similar post.
Sentence
8. In sentencing the learned judge described this as a very serious offence on the upper end of the scale of s. 3 offences. The injuries were described as “horrific”. The mitigating factors identified were the respondent’s previously impeccable character with no previous convictions. He had never come to Garda attention and was never likely to. The assault was without premeditation. The respondent was given the benefit of the doubt in relation to provocation. There was no need for rehabilitation as there is no likelihood of reoffending. It was noted that there was an offer of compensation to be made from the savings of the respondent and his partner. It was noted that if allowed to pursue his career the respondent would remain available to provide further compensation. A custodial sentence would be likely to destroy his career prospects and this would affect the injured party’s ability to recover compensation.
Appellant’s Submissions
9. It was the appellant’s submission that the sentencing judge erred in reducing the offence from the upper end of the scale and imposing a sentence at the lower end. There was a grave level of violence. The sentence was unduly lenient given the serious injuries and the use of a weapon.
10. While the sentencing judge identified the appropriate mitigation tendered he gave too much weight to it given the serious nature of the assault. The wholly suspended sentence was inappropriate where the offence had been deemed to be at the upper end of the scale.
11. The sentence did not reflect the serious nature of the assault with a weapon and there was no element of deterrence to others. The Court was referred to the decision in The People (DPP) v. Lyons [2014] IECCA 27 at para. 40 where it was noted that even though personal deterrence was not a significant factor there should be an element of deterrence to others. It would send the wrong message to society if this was not reflected in the custodial element and totality of punishment.
12. It was submitted that there was a failure to regard and reflect in the sentence the full extent of the trauma and lasting effects as outlined in the victim impact statement and medical reports.
13. There was a failure to appropriately consider the level of violence which should have attracted a custodial sentence. The use of a glass to strike the injured party’s face was an aggravating factor that was not given proper consideration during sentencing.
14. Undue weight was given to the guilty plea. There was very strong evidence against the respondent. It is accepted however that a guilty plea is always positive mitigation.
15. It was submitted that it was not proper to consider the effect of a custodial sentence on the respondent’s ability to pay compensation. The Court was referred to O’Malley, Sentencing Law and Practice, 3rd Ed., (Dublin, 2016) at para. 27-11 where the author states that the payment of compensation in the case of a serious offence should not save a person from imprisonment.
16. The pending civil action was not a matter that should have been taken into consideration. The Court was referred to Lyons at para. 63 where it was held to be a separate liability that is not a factor in sentencing. The payment of compensation should not automatically be a factor in mitigation.
Respondent’s Submissions
17. The judge must consider the aggravating and mitigating factors and sentence the individual offender based on the facts and their personal circumstances as held in The People (AG) v. O’Driscoll [1972] 1 Frewen 351 at 359. The respondent submitted that the mitigating factors were, in addition to those listed above, the guilty plea, that the respondent remained at the scene, made admissions, expressed remorse and wrote an apology letter. He stated he felt threatened. In his Garda interview he expanded and clarified the account he gave at the scene, he answered all questions and cooperated. He had worked to put himself through college where he did well and secured gainful employment, he was now the father of a newborn baby with his partner and there were testimonials speaking to his character.
18. The Court was referred to O’Malley where the author referenced a decision from the Supreme Court of South Australia where it was noted that the appropriate sentence is within a range and that sentencing is not a precise process. It was submitted that the sentencing court was entitled to identify the offence as at the upper end of the scale but also entitled to give maximum weight to the mitigating factors. There has been no issue raised about the quality of the mitigation.
19. It was submitted that the appellant’s submission that undue weight was given to the respondent’s guilty plea was unfounded. The Court dealt with it as a matter of fact not mitigation. It was not mentioned in the mitigating factors listed. The respondent could complain that the sentencing judge failed to afford credit for it. Further it was the respondent’s actions after the assault which left him with little scope for a defence. He bolstered the prosecution’s case. His admissions put identity beyond doubt, he was not known to the injured party, whose sight was affected in the assault and CCTV did not feature. The Court was referred to the comments on guilty pleas where the offender has provided most of the information for the case against him in The People (DPP) v. Begley [2013] 2 I.R. 188 at 212. It was noted that it must be given serious consideration. Further even when caught red handed a guilty plea represents a mitigating factor as noted in The People (DPP) v. Cully [2014] IECA 41 at para. 5.
20. The respondent noted the factors which were considered in The People (DPP) v. McCabe [2005] IECCA 79. These included his being lead to believe a non-custodial sentence would be imposed and that it was hanging over him for almost 3 years. The Court considered that the time elapsed between the offence and final decision on appeal in The People (DPP) v. C(J) [2014] IECA 1 and The People (DPP) v. Farrell [2010] IECCA 116 was a factor in refusing to interfere with the sentence imposed as it would be unjust in the circumstances.
21. It was submitted that the respondent is entitled to expect that the sentence imposed is that which he will have to abide by. This is consistent with the rule of finality. To interfere would cause hardship particularly if a custodial sentence replaced a non-custodial sentence. The courts have recognised this hardship and it was considered in The People (DPP) v. Ryan and Rooney [2015] IECA 2 at para. 30. In that case it was noted that the respondents had been at liberty but were then coming to be imprisoned. The Court recognised the additional disappointment following an extra period of anxiety and that it was recognised that this was a stressful experience that might justify some leniency. Moreover, other countries have reduced the new term of imprisonment in recognition of this. There was also a considerable amount of time since sentencing. The Court held that some significant allowance should be made for these factors.
Decision
22. There is no doubt but that the events during the night of 20th July, 2014 have had consequences that will live with the respondent and the victim for the rest of their lives. The victim, Brian Murphy, has not only suffered the catastrophic loss of his vision in one eye. He has had to endure five operations on his eye and will have another at some later stage. He will go through life with the ever present danger that any injury to his remaining eye will result in complete blindness. He has however pulled his life together admirably and has resumed his medical studies in Trinity College, Dublin albeit with some considerable difficulty. For him and for his family this incident has had devastating and life changing consequences.
23. For the respondent Robert Jones, the consequences have been considerably less devastating. They have however impacted upon him largely through the criminal process. From being a hard working, successful young man who had educated himself to a first class degree, good employment, marriage and the birth recently of a first child, he now finds himself at the hazard of a prison sentence.
24. Almost invariably in cases of violence such as herein, the Courts should impose a sentence however mitigated that contains at least some element of custody. There have however been exceptions to this. A good example may be found in the decision of this Court dated 23rd March, 2017 The People (DPP) v. Ann Marie Byrne. The judgment at paras. 26 and 27 considers the normal approach to sentencing as a two stage process, firstly determining the gravity of the offence and secondly discounting from the headline sentence for any mitigating factors that may be found. The Court went on to state at para. 28 as follows:—
“However, that fairly simplistic explanation of the process may represent less than the full picture in that subset of cases where a sentencing judge finds it appropriate to consider the possible suspension of the entirety of a nominated headline sentence. In that situation a subsidiary issue arises for consideration within the second stage of the overall process, namely whether the suspension of the entirety of the sentence could be appropriate at all in the circumstances of the case, and some issues already considered in the first stage may again become relevant in the context of that subsidiary issue.”
25. And later the Court continued at para. 33:—
“The offence in this case was subject to discretionary punishment. However, we recognise that some offences will be so serious that they effectively carry a presumption against the suspension of a custodial sentence in its entirety. That is certainly true in the case of rape offences, s.15A drugs offences, certain firearms offences and egregious crimes of violence. However, even in such cases existing jurisprudence indicates that a wholly suspended sentence can be imposed in cases where there are special reasons of a substantial nature and particularly exceptional circumstances. Examples are to be found in The People (Director of Public Prosecutions) v. McGinty [2006] IECCA 37; The People (Director of Public Prosecutions) v. Alexiou [2003] 3 I.R. 513; The People (Director of Public Prosecutions) v. Jervis and Doyle [2014] IECCA 14 and The People (Director of Public Prosecutions) v. Flanagan [2015] IECA 94.”
26. The Court later referred to a judgment of the New South Wales Court of Criminal Appeal in the case of R. v. Zamagias [2002] NSWCCA 17 which is cited in O’Malley on Sentencing (3rd Ed.) at para. 22.12. The Court summarised that judgment at para. 36 as follows:—
“It will be clear from this passage that amongst the considerations that a sentencing judge must have regard to, in deciding within the second stage of the sentencing process on the subsidiary issue as to whether or not the suspension of a sentence in its entirety might be appropriate in a particular case, are (i) the nature of the offence committed (ii) the objective seriousness of the criminality involved, (iii) the need for general or specific deterrence and (iv) the subjective circumstances of the offender.”
27. In this case the nature of the case was one of a sudden burst of violence that, although it may have been preceded by some hostile interaction, was unpremeditated. The judge gave the respondent the benefit of the doubt on the issue of provocation but did consider that the provocation involved did not amount to very much. It certainly could not justify the assault that ensued. The crime in question was certainly very serious in that it has had the gravest consequences. There can be no doubt but that the need for general deterrence does arise. Such egregious violence simply cannot be tolerated in any circumstances. The courts must deal severely with such offences.
28. The Court must consider not just the offence but also the offender. In this case the sentencing judge considered the subjective circumstances of the offender. As noted above, he has led heretofore an unblemished life. His self education speaks highly of him and should have made for a very successful career. He has in the circumstances of this incident and its aftermath erected some considerable challenges to that potential. He is now a married man with a newborn baby. He is in good employment. He has endured since the events of over two and a half years ago the traumata of arrest, charge and criminal trial. He has had to wait one year since sentencing to find out whether he will go to jail. These are not inconsiderable events that have befallen him. They are matters that this Court must consider in this appeal.
29. It might well be considered that the real headline sentence was as found by the sentencing judge to be one of five years imprisonment. Allowing the very substantial mitigation that is appropriate, it is possible to accept a reduction to 18 months imprisonment although it must be said that that stretches the mitigation factors in this case to their very limits. However, the sentencing judge then went further and suspended that 18 months in its entirety. We note the reasons he has advanced for doing so, and have afforded them great weight. Nevertheless, we have not been persuaded that these in fact justified the far reaching step taken. We do not consider that the evidence before the sentencing judge disclosed the existence of circumstances that were sufficiently substantial and extraordinary to have justified a wholly suspended sentence in the respondent’s case. We are therefore satisfied that the ultimate sentence imposed represented a significant departure from the norm and was unduly lenient.
30. In circumstances where we have found the sentence to be unduly lenient it would be appropriate, in the normal course of events, to quash the sentence imposed by the court below and for this Court to proceed to re-sentence the respondent afresh. However, we note with some concern that it has taken thirteen months for this review to come on for hearing. In circumstances where the respondent would have experienced the initial relief of believing that he had avoided custody, only to have that relief replaced within a short time with the deflating announcement that the applicant was intent on seeking a review of his sentence, and then having to endure the inevitable worry and anxiety of not knowing his fate for thirteen further months, we recognise that it would involve a significantly greater burden of hardship for the respondent to have to go into custody at this point. The question is, in circumstances where time has moved on, where the respondent has not re-offended, where he is gainfully employed, and where there has been significant undue delay, does the justice of the case still require that he should have to go into custody? We consider the issue to be a finely balanced one.
31. While we reiterate that, in most cases of egregious violence such as herein, a custodial element is likely to be required, principally to reflect the overall gravity of the offence, and in the interests of deterrence, both general and specific, we have come to the conclusion that the message in that regard will, in the circumstances of this case, be sufficiently promulgated by the Court’s finding that the initial sentence was unduly lenient, but that it is not necessary at this point to require the respondent to go into custody. Accordingly, we will not at this stage quash the sentence imposed by the court below and it will be sufficient to simply record our view that that sentence was, at the time when it was imposed, unduly lenient and a departure from the norm.
32. It is only because the same circumstances no longer obtain as obtained at the date of sentencing, due to the fact that time has moved on, coupled with our concern that the respondent should not be visited with the additional hardship that we have identified that was not of his making, that we found the scales tipped very marginally in favour of maintaining the status quo in terms of his sentence. We must emphasise that, had we been sentencing the respondent at first instance, we would certainly have imposed an 18 month sentence to be actually served.
33. The appeal is dismissed.
People (DPP) v AS [2017] IECA 310
JUDGMENT of the Mr Justice John Edwards delivered 28th of November 2017
Introduction
1. The matter comes before the court on foot of a consultative case stated referred by his honour Judge Thomas Teehan, a judge of the Circuit Court, and dated the 9th of March 2017, in which he seeks the opinion of the Court of Appeal upon a number of issues of law that have arisen in a case involving A.S., the accused herein.
2. The Circuit Court judge had previously on the 25th of July 2014 sentenced the accused, who at that time was child as defined by the Children Act 2001(the Act of 2001) to four years detention, to date from the 21st of March 2014, in a children detention centre (within the meaning of s.95 of the Act of 2001), to wit Trinity House, in the County of Dublin, for the offence of robbery contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, with the final two years of that sentence suspended upon the conditions of a bond entered into by the accused, and expressed to be for the purposes of s.99(1) of the Criminal Justice Act 2006 (the Act of 2006) as amended, that the accused would keep the peace and be of good behaviour towards all the people of Ireland during his period of detention and for a period of four years from the date of his release from detention.
3. The accused was 15 years of age at the date of his sentencing, having been born on the 8th of February 1999. The aforementioned offence of robbery was committed on the 20th of March 2014. The accused had pleaded guilty to the said offence.
4. On the 14th of February 2017 the matter was re-entered by the prosecutor before the Circuit Court Judge, purportedly pursuant to s.99(13) of the Act of 2016, as amended, in circumstances where the prosecutor was contending that the accused had breached the conditions of his bond.
5. The Circuit Court Judge heard evidence, which the accused did not contest, that on the 25th of July 2015 the accused had escaped from detention. Further, on the 3rd of August 2015 while he was unlawfully at large following his said escape he committed a robbery on the Dublin Luas Light Rail System in the course of which he had stolen two mobile phones. He was later identified by Gardai as the perpetrator, and was arrested and charged with robbery and was subsequently convicted of that offence before the Dublin Circuit Criminal Court. He was also separately charged and prosecuted in the District Court with escaping from lawful custody, and he had also been convicted of that offence. The case stated is silent as to the penalties imposed for those offences.
6. The Circuit Court Judge also heard evidence that on the 27th of May 2016 the accused pleaded guilty before the Dublin Circuit Criminal Court to yet another robbery, and the 23rd of June 2016 pleaded guilty, again before the Dublin Circuit Criminal Court, to the further offence of causing criminal damage. He was sentenced in respect of both of these matters on the 27th of July 2016, when he received two years in detention for the robbery offence and one year in detention for the criminal damage offence.
7. In the light of this evidence the Circuit Court Judge was satisfied that the accused had indeed breached the terms of the bond on foot of which the sentence imposed on him on the 25th of July 2014 had been part suspended.
8. By this time the accused had attained his majority.
9. The Circuit Court Judge indicated that in the circumstances he was disposed in principle to require the accused to serve some, or perhaps all, of the suspended portion of the sentence. However, in the course of hearing submissions on what precisely he should do in that regard prosecuting counsel raised a concern as to whether the court in fact had power to activate the suspended portion of the part suspended sentence of detention in a child detention centre imposed in this case on the 25th of July 2014, having regard to the nature of the bond entered into (which was expressed to be for the purposes of section 99 of the Act of 2006) and also having regard to the status of the accused at the time of the re-entry (he was by then no longer legally a child).
10. In the light of the concerns raised by counsel, the Circuit Court Judge has stated a case for the opinion of the Court of Appeal as follows:
i. Did I have jurisdiction pursuant to s.99 of the Act of 2006 (as amended), or otherwise, to suspend in part a sentence of detention on a child?
ii. If so, do I now have power in this case to activate some or all of the suspended sentence?
11. Clearly the first question must be addressed come what may. However, the second question will only require to be addressed if the first question has been answered in the affirmative.
12. There are two components to the first question. The first component is concerned with whether s.99 of the Act of 2006 provided the judge with the suggested jurisdiction? The second component is concerned with whether the judge otherwise possessed the suggested jurisdiction. It is proposed to consider each component separately.
Did s.99 of the Act of 2006 as amended provide the suggested jurisdiction?
13. Section 99 of the Act of 2006, as amended (up to the date of the consultative case stated, and excluding subss (9) and (10) which were held to be repugnant to the Constitution in Moore and others v. Director of Public Prosecutions, Ireland and the Attorney General [2016] IEHC 244), is in the following terms:
99.—(1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence, that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.
(2) It shall be a condition of an order under subsection (1) that the person in respect of whom the order is made keep the peace and be of good behaviour during—
(a) the period of suspension of the sentence concerned, or
(b) in the case of an order that suspends the sentence in part only, the period of imprisonment and the period of suspension of the sentence concerned,
and that condition shall be specified in the order concerned.
(3) The court may, when making an order under subsection (1), impose such conditions in relation to the order as the court considers—
(a) appropriate having regard to the nature of the offence, and
(b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence,
and any condition imposed in accordance with this subsection shall be specified in that order.
(4) In addition to any condition imposed under subsection (3), the court may, when making an order under subsection (1) consisting of the suspension in part of a sentence of imprisonment or upon an application under subsection (6), impose any one or more of the following conditions in relation to that order or the order referred to in the said subsection (6), as the case may be:
(a) that the person co-operate with the probation and welfare service to the extent specified by the court for the purpose of his or her rehabilitation and the protection of the public;
(b) that the person undergo such—
(i) treatment for drug, alcohol or other substance addiction,
(ii) course of education, training or therapy,
(iii) psychological counselling or other treatment,
as may be approved by the court;
(c) that the person be subject to the supervision of the probation and welfare service.
(5) A condition (other than a condition imposed, upon an application under subsection (6), after the making of the order concerned) imposed under subsection (4) shall be specified in the order concerned.
(6) A probation and welfare officer may, at any time before the expiration of a sentence of a court to which an order under subsection (1) consisting of the suspension of a sentence in part applies, apply to the court for the imposition of any of the conditions referred to in subsection (4) in relation to the order.
(7) Where a court makes an order under this section, it shall cause a copy of the order to be given to—
(a) the Garda Síochána, or
(b) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.
(8) Where a court has made an order under subsection (1) and imposes conditions under subsection (4) upon an application under subsection (6), it shall cause a copy of the order and conditions to be given to—
(a) the probation and welfare service, and
(b) (i) the Garda Síochána, or
(ii) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.
(9) [Held to be repugnant to the Constitution]
(10) [Held to be repugnant to the Constitution]
(10A) The court referred to in subsection (10) shall remand the person concerned in custody or on bail to the next sitting of the court referred to in subsection (9) for the purpose of that court imposing sentence on that person for the offence referred to in that subsection.
(11) (a) Where an order under subsection (1) is revoked under subsection (10), a sentence of imprisonment (other than a sentence consisting of imprisonment for life) imposed on the person concerned under subsection (10A) shall not commence until the expiration of any period of imprisonment required to be served by the person under subsection (10).
(b) This subsection shall not affect the operation of section 5 of the Criminal Justice Act 1951 .
(12) Where an order under subsection (1) is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked that order.
(13) Where a member of the Garda Síochána or, as the case may be, the governor of the prison to which a person was committed has reasonable grounds for believing that a person to whom an order under this section applies has contravened the condition referred to in subsection (2) he or she may apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).
(14) A probation and welfare officer may, if he or she has reasonable grounds for believing that a person to whom an order under subsection (1) applies has contravened a condition imposed under subsection (3) or (4), apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).
(15) Where the court fixes a date for the hearing of an application referred to in subsection (13) or (14), it shall, by notice in writing, so inform the person in respect of whom the application will be made, or where that person is in prison, the governor of the prison, and such notice shall require the person to appear before it, or require the said governor to produce the person before it, on the date so fixed and at such time as is specified in the notice.
(16) If a person who is not in prison fails to appear before the court in accordance with a requirement contained in a notice under subsection (15), the court may issue a warrant for the arrest of the person.
(17) A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.
(18) A notice under subsection (15) shall be addressed to the person concerned by name, and may be given to the person in one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;
(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.
(19) This section shall not affect the operation of—
(a) section 2 of the Criminal Justice Act 1960 or Rule 38 of the Rules for the Government of Prisons 1947 (S.R. & O. No. 320 of 1947), or
(b) subsections (3G) and (3H) of section 27 of the Misuse of Drugs Act 1977 .
(20) Where a court imposes a sentence of a term of imprisonment that is to run consecutively to a sentence of a term of imprisonment the operation of a part of which is suspended, the first-mentioned sentence shall commence at the expiration of the part of the second-mentioned sentence the operation of which is not suspended.
14. It is clear from its terms that s.99 only applies to sentences of “imprisonment”. What constitutes imprisonment for the purposes of s.99 is in turn defined in s. 98 of the Act of 2006 as amended by s. 17 of the Prisons Act 2015. The terms of that definition are such that it “includes detention in a place provided under section 2 of the Prisons Act 1970 and ‘sentence of imprisonment’ shall be construed accordingly”. It has been argued before us on behalf of the prosecutor that because s.98 uses the word “includes” this Court would be justified in construing s.98 as extending the power of suspension to sentences of child detention. I do not consider that this would be a correct interpretation of s.98 for reasons that I will return to later in this judgment.
15. Section 2 of the Prisons Act 1970 provides that:
“The Minister may, for the purpose of promoting the rehabilitation of offenders, provide places other than prisons for the detention of persons who have been sentenced to penal servitude or imprisonment or to detention in Saint Patrick’s Institution.”
16. The accused in the present case was sentenced to detention in a children detention centre (within the meaning of s.95 of the Act of 2001), to wit Trinity House, in the County of Dublin. I am satisfied that he was not, and could not have been, sentenced to either penal servitude, or imprisonment (as defined in s. 98 of the Act of 2006), or to detention in St Patrick’s institution as legislative policy reflected in the Act of 2001 would have prevented such a sentence being imposed upon him.
17. In that regard, s156 of the Act of 2001 provides (inter alia) that “[n]o court shall pass a sentence of imprisonment on a child”. As Paul Anthony McDermott and Tessa Robinson, Barristers at Law, have pointed out in their annotated commentary on the Children Act 2001 (Thompson Round Hall: 2003) at p.111:
“The central plank of Pt 9 [which sets forth the powers of courts in relation to child offenders] is to be found at the very end of it where s. 156 provides that no court shall pass a sentence of imprisonment on a child or commit a child to prison. Pt 9 seeks to provide a sufficient range of alternative options to prison, ranging from a reprimand at one end of the spectrum to a period of detention in a child detention centre at the other end.”
18. Having considered the Act of 2006 as a whole, and having regard to the place of s.98 within that Act, and specifically within Pt 10 of that enactment which is entitled “Sentencing”, I do not find any support for the notion that the Oireachtas could have intended to row back on the public policy objectives given effect to in Pt 9 of the Act of 2001, in the absence of express words indicating such an intention. It is primarily for this reason that I reject the interpretation of s.98 commended by the prosecutor.
19. Therefore I consider that in so far as s.99 only provides for the suspension of sentences of imprisonment as defined in s.98, and that definition does not cover sentences of detention in a children detention centre, the sentence passed on the 25th of May was bad to the extent that, in so far as it was partly suspended, the suspension was expressed to be for the purposes of s. 99(1) of the Act of 2006.
20. That being my view, it then begs the further question: did the sentencing judge have jurisdiction, other than under s.99 of the Act of 2006, to partly suspend a sentence of detention in a children detention centre? Moreover, in the event of this question being in the affirmative, it might then be necessary to consider how the reference to s.99 which appears in the sentencing order should be treated. This would involve consideration of whether the whole sentencing order is to be regarded as invalid, or whether the reference to s.99 might be severed on the basis that it merely represents surplus wording that is devoid of legal effect.
Did the Circuit Judge otherwise possess the suggested jurisdiction?
21. It has been argued before us that such a jurisdiction might still exist at common law. Certainly, prior to the enactment of s.99 of the Act of 2006, a jurisdiction existed at common law to suspend a sentence of imprisonment. The origins and history of the common law power to suspend a sentence of imprisonment is carefully traced and recounted by Prof W.N. Osborough in an erudite article published in the Irish Jurist in the early 1980’s, and entitled “A Damocles’ Sword Guaranteed Irish: The Suspended Sentence in the Republic of Ireland” The Irish Jurist 1982, 15(2), 221-256.
22. However, it has been held by the High Court in Director of Public Prosecutions (Garda Purtill) v Murray [2015] I.E.H.C.782 (unreported, High Court, O’Malley J, 11th December 2015) that the common law power to suspend a sentence of imprisonment did not survive the enactment of s. 99 of the Act of 2006. This case also involved a consultative case stated in which the High Court was expressly asked asked “Did the power of the District Court at Common law to suspend sentences of imprisonment survive the enactment of Section 99 of the Criminal Justice Act 2006 as amended?”
23. O’Malley J held that:
“…in my view it is clear from the provisions of the section that the legislature’s intention was to regulate the suspended sentence by putting it on a statutory footing. In so doing the objective was to provide a complete code in so far as the minimum conditions of suspension, the supervision of offenders, the enforcement powers of the court and the discretion in relation to activation are concerned.”
24. The learned High Court judge (as she then was) added in conclusion:
“In these circumstances there is no scope for a “parallel jurisdiction” to be operated outside the statute. I will therefore answer the question posed in the negative”.
25. In the present case, however, it has been argued that in so far as s. 99 of the Act of 2006 was found to represent a complete code for the purposes of regulating the suspended sentence, it could only be such a code with respect to suspended sentences of imprisonment, because that is all that s.99 purports to apply to. I am aware of certain Supreme Court authorities that would tend to support such an argument, in particular Mavior v Zerko [2013] 3 I.R. 268 and In Re F.D. [2015] 1 I.R. 741, and in those circumstances I have no difficulty in accepting that argument in so far as it goes. Accordingly, if a parallel jurisdiction existed at common law to suspend a sentence imposed on a child involving detention that was not imprisonment, such a power could potentially have survived the enactment of s. 99 of the Act of 2006. Whether such a power could have survived the enactment of Pt 9 of the Act of 2001 is quite another issue. I will address that later in this judgment.
26. The prosecutor in this case has advanced two possible bases on which the Circuit Judge might be regarded as possessing the jurisdiction to suspend a sentence of detention in a child detention centre. She has argued firstly that such a power is necessarily to be implied from the terms of the Act of 2001; alternatively there is a residual common law power to suspend such a sentence which has survived the enactment of the Act of 2001.
27. The counter arguments are that the Act of 2001 does not confer a general power to suspend, in whole or in part, a sentence of detention in a child detention centre, either expressly or by implication. On the contrary it is said that the Act of 2001 creates, in s. 144(9) thereof, only a very limited and restricted power of suspension to apply only in circumstances where the making of a detention order has been deferred in the circumstances provided for in s.144(1); and that a proper construction of the statute leans in favour of an interpretation that the Oireachtas did not intend to confer any wider power of suspension on a court when sentencing a child to detention in a child detention centre.
28. In addition it is argued that no residual common law power to suspend a sentence of detention in a children detention centre has survived the enactment of the Act of 2001. A power to suspend such a sentence appears to have existed at common law, certainly up until the enactment of the Act of 2001. In that regard Osborough (op cit) cites examples of cases where in the past Irish courts have been prepared to suspend sentences of detention (e.g. the case of Forbes, 1926, mentioned on p.227 of the article, in which the Court of Criminal Appeal when dealing with the case of a 16 year old who had been convicted of perjury substituted a suspended sentence of six months detention (in a Borstal) for the sentence of two years detention imposed at first instance). While it is not disputed that the power to suspend such a sentence may have existed at common law, it is suggested on behalf of the accused that the Act of 2001 provided a complete code for the sentencing of children and that, to use the words of O’Malley J in Director of Public Prosecutions (Garda Purtill) v Murray with reference to s.99 of the Act of 2006, it leaves no scope for a parallel jurisdiction to be operated outside of the statute.
29. I have considered carefully the arguments on both sides in respect of each of these contentions.
30. In so far as the prosecutor contends that a power of suspension may be implied from the terms of the Act 2001, that argument goes as follows. The entire thrust of the Act of 2001 is that the sanction of detention (i.e., deprivation or restriction of a child’s liberty within the confines of, or subject to the regime of, either a children detention school or a children detention centre) should be imposed only a last resort. Express effect is given to this policy in s.143 of the Act of 2001 which provides (inter alia): “The court shall not make an order imposing a period of detention on a child unless it is satisfied that detention is the only suitable way of dealing with the child”. It is said that any court involved in sentencing a child must therefore have in its toolbox the fullest range of sentencing options short of actual custodial detention, and accordingly since a suspended sentence is for all practical intents and purposes a form of non-custodial disposal any such court must, by necessary implication, be vested with the power to suspend a sentence of detention in a children detention centre, either in whole or in part.
31. It is argued in response on behalf of the accused that the Act of 2001 contains a very wide range of non-custodial options other than suspended sentences, and that the failure to expressly provide for suspended sentences other than in s.144(9) must be regarded as a conscious and deliberate policy choice. That it might be so regarded is not surprising in that the conventional suspended sentence is focussed primarily on the deterrent effect of the notional “Sword of Damocles” hanging by a thread over the head of the offender, whereas current legislative policy as reflected in the Act of 2001 requires a different focus, namely the encouragement of natural desistance from anti-social behaviour and criminal activity through community based rehabilitation.
32. Moreover, counsel for the accused points out, the Act of 2001 in fact contains many non custodial options optimised towards those goals which are not in truth all that different in their practical features from those found in conventional suspended, or partly suspended, sentences. Thus, we find included in the list of community sanctions (to be found in s.115) various types of probation orders (ss. 124 to 126), a care and supervision order (s.129), and a mentoring order (s.131), to name but some, each with potential measures that might be applied in the event of non-compliance. In addition, the possibility exists of attaching conditions to community sanctions (with an inexhaustive list of possibilities in that regard appearing in s.117), such as a requirement to be of good behaviour, or to submit to supervision or to attend/engage with support services (such as the Probation Service). The imposition of similar conditions commonly arises as a feature of the conventional suspended sentence. It might also be said that s.151 of the Act of 2001, which provides for a detention and supervision order, offers an analogue for the partly suspended sentence that broadly approximates it, but which better reflects modern penalogical thinking in the area of child offenders whom it is considered must be subjected to the last resort of some actual detention.
33. I have carefully considered the entire scheme of the Act of 2001, as well as its long title and its detailed provisions and having done so I am not persuaded by the arguments advanced by the prosecutor. In particular, I find the absence of an express power to impose a suspended sentence other than in the circumstances set forth in s. 144(9) to be of significance. I am satisfied that no basis exists for implication of the power that the prosecutor invites us to imply. The Act is clear in its terms and I have no reason to believe that the failure to provide for an express general power to suspend sentences of detention in either a children detention school or in a children detention centre was other than a deliberate policy choice by the legislature. The Act is neither ambiguous nor does a literal interpretation lead to an absurdity. There is no basis for affording it the purposive or teleological interpretation that the prosecutor would have us do.
34. In circumstances where I reject the idea that the suggested jurisdiction arises by implication under the Act of 2001, it remains to be considered whether the undoubted former jurisdiction to suspend a sentence of detention imposed on a child could have survived the enactment of the Act of 2001. I am satisfied that it could not for the following reasons.
35. The Act of 2001 is expressed in its long title to be “An Act to make further provision in relation to the care, protection and control of children and, in particular, to replace the Children Act, 1908, and other enactments relating to juvenile offenders, to amend and extend the Child Care Act, 1991, and to provide for related matters.”
36. Child law as a discipline embraces both the care and protection of children and juvenile justice. Reform of child law in this jurisdiction was commenced with the Child Care Act 1991 which was concerned with updating the law relating to the care and protection of children but which did not address juvenile justice at all. It is clear from the long title to the Act of 2001, from its scheme and from its detailed provisions, that it was intended to build upon (i.e. “make further provision for”) the reforms commenced in the Child Care Act 1991 in so far as the care and protection of children were concerned, but also to completely replace the pre-existing law with respect to juvenile justice which up to that point was to be found, for the most part, in the Children Act, 1908, and related enactments. Although the pre-existing common law power to suspend a sentence of detention imposed on a child is not expressly alluded to in the Act of 2001 I am satisfied that in so far as the Act is concerned with juvenile justice it was intended to completely replace the pre-existing and outdated law in that regard, including residual common law powers, with a new and hopefully coherent and comprehensive statutory framework.
37. I further note, though it is only in passing in circumstances where my view in that regard has been arrived at solely based upon a detailed consideration of the legislation itself, that McDermott and Robinson (op cit), in an introduction and general note at the start of their text, record that the then Minister for Justice, in the course of the Dáil debates on the Bill that was to become the Act of 2001, described it as “a blue print for a new system of juvenile justice” and stated that “its provisions are the distillation of the accumulated wisdom and the best practice world-wide in the area of juvenile justice” (Mr John O’Donoghue TD, 517 Dáil Debates Col 32).
38. Accordingly, applying the same logic as was applied by O’Malley J in Director of Public Prosecutions (Garda Purtill) v Murray, it is clear that the common law power to suspend a sentence of imprisonment did not survive the enactment of the Act of 2001, and in particular Pt 9 thereof.
Conclusions
39. The first question posed in the case stated must be answered in the negative.
40. It is not necessary in those circumstances to address the second question posed in the case stated.
41. Equally, it is also unnecessary to address the possible subsidiary questions identified at paragraph 20 above as potentially arising in the event of an affirmative answer to the first question.
People (DPP) v AD
[2018] IECA 308
JUDGMENT of the Court delivered on the 3rd of October 2018 by
Mr. Justice Edwards.
Introduction
1. On the 2nd of July 2015, the appellant in this case, who faced trial on an eighteen count indictment, pleaded guilty before Dublin Circuit Court to three sample counts of indecent assault contrary to the common law, being counts nos. 1, 5 and 10 on the indictment.
2. On the 23rd of July 2015, the appellant further pleaded guilty to an additional three sample counts of sexual assault, contrary to s. 2(2)(a) of the Criminal Law (Rape) (Amendment) Act 1990 (“the Act of 1990”), as amended by Section 37 of the Sex Offenders Act 2001, being counts nos. 11, 14 and 18 on the same indictment.
3. These pleas were acceptable to the Director of Public Prosecutions on the understanding that the evidence at the sentencing hearing would be presented on a full facts basis.
4. On the 24th of July 2015, the appellant was sentenced. He was sentenced to two years’ imprisonment on count no.1, and to two years imprisonment on count no.10, both of which concerned indecent assault. He was further sentenced to three years imprisonment in respect of count no. 11, which concerned sexual assault. Count no.10 was made consecutive to count no. 1, and count no. 11 was made consecutive to count no. 10, amounting to an overall term of seven years imprisonment. Counts nos. 5, 14 and 18 were taken into consideration.
The Facts of the Case
5. The appellant in this case is a married man and, during the course of his married life, he and his wife fostered four children, one of whom is the first named complainant (“F”) in the present case. F lived with her biological grand-parents until she was four years old, at which time the appellant and his wife fostered her and raised her as their step-daughter. The appellant’s family, including F, lived in Blackpool in England until she was eight, at which time they moved to Dublin. During a six-year period, commencing on the 1st of June 1972 and concluding on the 1st of June 1978, the appellant sexually abused F on numerous occasions. She was between the ages of eight and fourteen during this period.
6. During the trial, Detective Karl Smith gave evidence to the court detailing the nature of the sexual abuse that took place. In brief, a number of these assaults occurred when the appellant was bathing F and her brother, whereby he would rub her genitalia and breasts. The appellant would also habitually come into F’s room when the rest of the family were sleeping. The appellant would kneel down by the side of F’s bed and put his face right next to hers. The appellant would then proceed to touch her vagina and back passage. F complained to the Gardaí that this would happen “constantly” and that the appellant always “smelled of alcohol but he wouldn’t have been very drunk. He would always know what he was doing.”
7. There was another incident when the appellant was 13 and her mother had gone over to England due to the death of her sister. The appellant came into the room, and, “like normal, he knelt down by my bed and put his hand under the blankets.” The appellant then proceeded to climb on top of her and attempted to put his penis in her vagina but she fought him off, ultimately hitting her head off the bed in the process. There were various other incidents of abuse, including on various trips to Phoenix Park and the playground where the appellant would touch F inappropriately. The abuse stopped when F was around 14 or 15. Counts 1, 5 and 10 related to offending against F.
8. The appellant and his wife also had a son during their married life. The appellant’s son married and had a daughter (“N”), granddaughter to the appellant. For a period of four years between 1997 and 2001, the appellant sexually assaulted N on numerous occasions. The abuse began when N was four years old and ended when she was eight. In a statement made to Gardaí outlining the abuse, N recalls how she and her brother would occasionally stay over in her grandparents’ house. They would both share a single bed in the back bedroom. On one such occasion, when she was six years old, N woke up to find her nightdress pushed up and her pants pulled down. She could feel the appellant beside her, licking her bottom. This occurred for 15 or 20 minutes whilst N lay there awake and “frozen”.
9. Another incident occurred when N was seven years old in the appellant’s sitting room. As she was walking through the sitting room, the appellant directed her to put her hands on top of the sofa and lean over the arm. She was not undressed but could feel his penis against her bottom, whilst he held her hips. After simulating a thrusting movement for five minutes, the appellant finished doing so and told N to leave.
10. The appellant frequently subjected N to other incidents of sexual assault. There were several other instances of abuse where the appellant touched her inappropriately in the shed in his garden; at a particular public park, in a certain public Library, and at the playground.
11. In 2013, N went to a health centre for the purposes of receiving counselling. She was receiving counselling for a number of months and, at some stage during these sessions, N disclosed the fact that she had been sexually abused by the appellant. Some time after making this disclosure to her counsellor, N told her mother, and at a later date, her father, about the abuse she suffered at the hands of the appellant. N’s father subsequently confronted the appellant about the allegations made against him. After a heated discussion, the appellant admitted to sexually abusing N. Counts 11, 14 and 18 related to offending against N.
12. Subsequently, on the 9th of September 2014, the appellant confided in a local priest about what he had done. The priest warned him that, as these disclosures were outside the sacrament of confession, he would be obliged to report it to the authorities. Notwithstanding this warning, the appellant proceeded to confide in the priest and, on the 12th of September 2014, the appellant voluntarily presented himself at Mountjoy Garda Station, whereby he requested to speak to a senior member of An Garda Síochána. On the same date, the appellant was introduced to Detective Garda Lisa Sheehan and Detective Sergeant Gavin Ross. After being advised by the interviewing detectives that this was a cautioned voluntary interview and that he could leave at any stage, as well as his right to a solicitor, the appellant replied, “I do. I know, I came here of my own accord, I want to sort this out”. The detective Gardaí then proceeded to interview the appellant who confessed to sexually abusing F. After being asked if he had abused anybody else, the appellant also confessed to the interviewing Gardaí that he had abused N, his step-daughter, as-well, indicating that “whatever she says when you speak with her should be taken as gospel”.
13. Subsequently, an investigation took place whereby statements of complaint were taken from both victims, effectively confirming what the appellant had admitted to during his interview of the 12th of September 2014.
The impact on the victims
14. Victim impact statements were provided to the sentencing court for both victims. F states, inter alia , that the abuse suffered at the hands of the appellant has made her life “a living hell” – that her grandfather was supposed to protect and care for her as opposed to verbally and sexually abusing her. She has suffered for many years, and indeed still does suffer, from flashbacks and nightmares and the abuse has left her “an emotional wreck”. Her marriage has failed and she is now trying to repair the broken relationships with her own children, relationships that were strained by the trauma F was carrying around from her own past. She still feels very hurt and let down and the abuse has scarred her for life.
15. In her victim impact statement, N states she has been attending counselling and that talking about the abuse she suffered is of some comfort to her, but every time she goes to her counselling session she “was filled with worry and felt nervous that [she] would bump into [the appellant]”. For years she was alone with the burden of the abuse she suffered, with nobody to talk to about it. She feels like part of herself was taken away because of the appellant and that he ruined her childhood. The abuse also prevented her from having a proper relationship with some of her family since, from childhood, she saw all men as a threat and thus never talked to her mother’s grandad, father or brother. Also, as she was abused in her grandfather’s house, she could never bring herself to go back to that house, even when the appellant was no longer there anymore. As a result of this, she has missed out on the chance for her own children to get to know their great- grandmother and, indeed, for her to spend more time with her own grandmother. Finally, N finds it very difficult to trust people since the abuse. She is extremely protective of her own children and never lets them stay with anyone apart from her own parents. She hopes that she can move on with her life but states that “at the moment I feel [the appellant] has won”.
Appellant’s personal circumstances
16. Counsel for the appellant indicated to the sentencing court that his client did not wish for any plea to be advanced in relation to “his health, alcohol [or] his advancing years”. Moreover, the sentencing court did not have the benefit of any pre-sentencing report in assessing the appellant’s personal circumstances. However, from the evidence led in the court below, some pertinent details regarding the appellant’s personal circumstances emerge.
17. The appellant, born on the 16th of September 1937, was 77 at the time of sentencing (he is 81 now). He began working at approximately 15 years of age and worked consistently throughout his life, predominantly as a baker. The appellant and his wife were foster parents and fostered four children, including F, in a two-year period. The appellant’s family lived in Blackpool in England for a period, before moving to Ireland when F was eight years old, where they lived at different stages in two different suburbs of Dublin.
18. The appellant has no previous convictions and, prior to the present offences, it seems, had never come to the adverse attention of An Garda Síochána.
19. Since the appellant’s offending behaviour came to the attention of his family and the authorities, he has been banished from the family home. Whilst this is completely understandable from the perspective of the appellant’s family, it should be noted that, at the hearing of this appeal, counsel for the appellant informed the Court that the appellant has had one visitor in the three years that he has been in prison. This utter isolation has to be difficult for a man of the appellant’s age, notwithstanding the egregious nature of his offending behaviour.
20. It should also be noted, as touched on above, that the manner in which the appellant confronted the allegations made against him is highly unusual. After being confronted by his son, F’s father, about the allegation made against him by F, the appellant, after first confiding in a local priest, a couple of days later voluntarily presented himself at Mountjoy Garda Station and confessed to sexually abusing both F and N. He was co-operative throughout the whole process, and indicated in advance, through the medium of his legal representatives, that he would be entering a guilty plea and indeed so pleaded at the first mention date before the Court on the 2nd of July 2015.
The sentencing judge’s remarks
21. The sentencing judge, in sentencing the appellant, stated inter alia that: –
“[I]t seems to me I must assess a sentence for [the appellant] in a global fashion. The counts that are before me are representative counts in relation to certain periods of time when he abused these children. So, obviously in sentencing I must also take into account a maximum sentence prescribed by law at the time, and I must do the best I can to impose upon him a sentence that is fair and just to him, and also fair and just to the people of Ireland, taking into account that he has committed crime. Now, in deciding what to do about him, first and foremost, I must take into account what he did. These are serious counts. I must take into account also the position [the appellant] was in when he abused. He was in a position of trust in relation to both of the girls. I must take into account the prolonged nature of the abuse. I must take into account the number of incidents of abuse as best I can determine. Obviously, these are the factors on one side I must take into account. I also must take into account the mitigation, the mitigating factors. Obviously, the major mitigating factor is the fact that he made — he, when confronted, he admitted his wrongdoing. It seems he consulted a priest and it seems after that he made admissions to the guards after being confronted by his son. He followed those admissions with an early plea. I must also take into account — I think I can take into account that [the appellant] is remorseful for what he did. I must take into account the age of [the appellant], he’s 77 years at this stage, and I must also take into account that his general health situation. I must take into account in relation to that matter that, obviously, a prison sentence for [the appellant] will be more difficult by reason of his age. Now, obviously the severely aggravating factor is the crimes themselves, and the position that [the appellant] was in when he committed the crimes. That goes without saying. As I’ve indicated in my opening remarks, I must sentence him globally for what he did. I have two periods of time when he abused greatly his daughter and his granddaughter.
So, I think the appropriate cumulative sentence I’m going to impose upon him is going to amount to [be] (sic) a term of seven years imprisonment. Now, what I propose to do in relation to count No. 1, I’m going to impose upon him a two year custodial sentence. In relation to count No. 10, I think is the last count dealing with [Ms. F’s] situation, I’m going to impose upon him a two year custodial sentence. And in relation to count No. 11, this is the first Count in relation to his granddaughter, [Ms. N], I’m going to impose upon him a three year custodial sentence. And all of those sentences are to run consecutively, which amount to a seven year custodial sentence. I’ve approached the matter, I suppose, to some degree in reverse. I have decided what the global sentence should be, taking into account the facts of the case, the wrongdoing involved and taking into account the mitigating factors. Now, there is mitigating factors well made by Mr Bowman on behalf of his client but I must impose upon him a severe custodial sentence, even taking into account his age, taking into account what he did over the periods of time mentioned in the counts. The numbers are huge, I think. Obviously, what’s been said by the guard in relation to the activities speak for themselves, but it’s a serious, serious fall from grace by [the appellant]. He abused his daughter and granddaughter and he abused hugely the trust in the matter. Therefore, unfortunately, I feel I must impose upon him a pretty long sentence, taking into account his age.”
Grounds of Appeal
22. Counsel for the applicant appeals against the severity of the sentence on the following grounds:
a) The sentencing judge failed to consider adequately the possibility of a partially suspended sentence, in particular having regard to his guilty plea, his work history, the likelihood of re-offending and his family circumstances.
b) The sentencing judge erred in principle in structuring the sentence in arriving at a “global” figure for all three counts without identifying the ‘headline sentence’ for each individual count by locating the offending behaviour on the scale of gravity. The sentencing judge, in working backwards from the global sentence of seven years, imposed the maximum sentence for both counts of indecent assault and a mid-high range sentence of three years for the count of sexual assault.
c) Similarly, the sentencing judge failed to identify the extent to which, if at all, the various mitigating factors present in the case were taken into account.
Appellant’s submissions
23. The appellant’s central objection to the sentencing court’s decision is the manner in which the sentencing judge arrived at the global sentence of seven years for the three sample counts in question. Counsel for the appellant takes issue with the fact that the sentencing judge effectively approached the issue in reverse. Firstly, he arrived at a global sentence of seven years. From here he decided that the first two counts of indecent assault would attract the maximum sentence of two years each and that the final sample count of sexual assault would attract a mid-high level sentence of three years. As a result of this unorthodox approach, the appellant argues that it is impossible to decipher a number of key “milestones along the sentencing roadway” , as counsel for the appellant puts it.
24. For instance, the appellant argues in his written submissions that it cannot be deciphered from the sentencing judgment what headline sentence was arrived at in respect of each sample count of offending behaviour. The Court’s attention was drawn to the well-settled line of jurisprudence, including the recent decision of this Court in The People (Director of Public Prosecutions) v. Davin Flynn [2015] IECA 290, in support of the proposition that a sentencing court should assess the gravity of the offending conduct in the first instance, in order to locate a headline sentence within the range of available penalties. The assessment of gravity must be carried out by reference to the moral culpability of the offender and the harm caused by the offending behaviour. However, in the present case, the appellant argues that no such assessment of gravity was carried out. Rather, as already mentioned, the sentencing judge in the present case imposed the maximum sentence for the two indecent assault sample counts without any reference to how the court located the offence at the very top end of the scale of gravity in respect of these two counts.
25. Notwithstanding this written submission, it was conceded by counsel in his oral submissions to this Court, that, in terms of the sexual abuse on F, there were aggravating factors which justified locating this offending behaviour at the top end on the scale of gravity. Similarly, in terms of the sexual assault sample count against N, the appellant does not seem to take issue with the sentence of three years per se . Rather, in both cases his complaint appears to be focussed primarily on the inability to decipher what the sentencing court’s headline sentence was, or indeed how it was reached.
26. Further, the other central plank of the appellant’s case is that, even if the maximum sentence was warranted on each count, on account of the gravity of the offence, the undoubted mitigating factors should have served to reduce each of the sentences. Whilst the sentencing judge did identify the various mitigating factors in the case, the appellant argues that no demonstrable appreciation of the mitigating factors can be identified due to the fact that the maximum sentence was imposed for both of the indecent assault sample counts. Counsel for the appellant submits that there were mitigating factors present in respect of the offending behaviour against each victim, which should have resulted in lesser sentences than the statutorily prescribed maximum sentences which were imposed. These mitigating factors should have been discounted from each individual headline sentence, as opposed to applying mitigation to the totality of the offending behaviour. However, the appellant maintains, even if a global discount was applied to reflect mitigation it is impossible, in the absence of any identifiable headline sentence, to know what actual discount was afforded for mitigation.
27. Thus, in relying on the constitutional requirement that sentences be proportionate to the gravity of the offence and the personal circumstances of the offender, the appellant argues that the sentencing judge erred in principle in failing to adequately make allowance for the mitigating factors in the case. We were referred to The People (Director of Public Prosecutions) v. Kelly [2005] 2 IR 321, and The People (Director of Public Prosecutions) v. O Neill [2012] IECCA 37, in support of the proposition that significantly greater weight should have been given in this case to the fact that the appellant has no previous convictions.
28. Finally, the appellant argues that the sentencing judge failed to consider suspending part of the sentence in the circumstances of this particular case. Counsel for the appellant argues that the sentencing judge ought to have considered suspending part of the sentence so as to incentivise rehabilitation post-release. Indeed, this was requested by counsel for the appellant after the sentence had been handed down. However, the sentencing judge refused this application on the basis that the appellant would be eighty by the time his seven-year sentence is concluded and would not need post-release supervision at that stage.
Respondent’s submissions
29. The respondent accepts that the sentencing judge did not follow this Court’s recommended best practice as outlined in the Davin Flynn case. However, the respondent relies on a couple of decisions of this Court as authority for the proposition that a failure to adhere to best practice will not automatically lead to the sentence being overturned [ The People (Director of Public Proseuctions ) v. Martin Reilly [2016] IECA 43; and The People (Director of Public Prosecutions) v. Viorel Salageanu [2016] IECA 232]. Rather, as was held in the Reilly case (at para 20), the sentencing decision may be upheld if “the final sentence does not appear to represent to us a deviation from what might reasonably have been expected in a case such as this.”
30. The respondent submits that the ‘global’ sentence of seven years was proportionate in circumstances where the sentencing judge only sentenced the offender on three sample counts, notwithstanding the evidence that the appellant had committed numerous sexual assaults during the periods in question. Indeed, the respondent submits that this consideration was explicitly referenced by the sentencing judge in articulating his reasoning for the sentence handed down. The respondent directed the Court to the following portion of the sentencing judgment in reliance on this proposition:
“The counts that are before me are representative counts in relation to certain periods of time when he abused these children …. [The appellant] seems to have abused his daughter over a period from the 1/6/72 to the 1/6/78, almost a six-year period. He abused his granddaughter over a period from the 30/3/1997 to the 30/3/2001. He did it on numerous occasions and a huge number of occasions in relation to his daughter. Also, there was a good number of occasions where he abused his granddaughter”
31. The respondent submits that the imposition of the maximum sentence in respect of the indecent assault counts was appropriate in circumstances where it was incumbent on the sentencing judge to sentence the appellant in relation to the totality of the offending behaviour.
32. Further, in response to the submission that the sentencing judge failed to specify the extent, if any, to which he was taking into account the mitigating factors in the case, the respondent argues that all of the relevant mitigating factors were explicitly referred to in the decision, including the “major mitigating factor is the fact that he…consulted a priest and it seems after that he made admissions to the guards after being confronted by his son. He followed those admissions with an early plea’ and the fact that ‘a prison sentence for [the appellant] will be more difficult by reason of his age”.
Discussion and Analysis
33. The issue of global sentencing was recently addressed by this Court in its decision in The People (Director of Public Prosecutions) v Casey [2018] IECA 121. This was in the context of an undue leniency appeal in respect of sentences imposed for a spree of burglaries where the DPP complained that, amongst other things, the sentencing judge had erred in opting not to take a global approach to sentencing. We said in regard to that:
“11. It is said that the judge erred in failing either to identify pre-mitigation headline sentences for each of the individual offences or a global headline sentence reflecting the totality of the offending behaviour. The Director says that this was a case where quintessentially a global headline sentence was called for. In support of this submission, she says that residential burglary is a particularly serious offence and that here the respondents had effectively embarked on a burglary spree in a manner that was clearly planned and pre-meditated. It was important that there should be a clear statement as to the sentence that such behaviour merited.
12. We consider it appropriate at this point to make some general observations with respect to this submission. Where multiple offences have been committed in a spree there is nothing in principle wrong with a court taking account of the overall gravity of the offending conduct viewed globally, indeed it is desirable that it should do so. Where a court is sentencing for multiple offences committed in a spree, the fact that they were committed in a spree should be regarded as an aggravating factor. That it was part of a spree renders the gravity of each individual offence more serious and the overall offending conduct must consequently be regarded as more serious than any individual offence considered in isolation. There are a number of ways in which this increased gravity can be reflected. The first is to impose proportionately higher offences for each individual offence and simply make them all concurrent. The second is to assess gravity in respect of each individual offence without reference in the first instance to the fact that they were committed in a spree and then, having done so, to at that point seek to reflect the aggravating circumstance of the spree by having recourse to at least some degree of consecutive sentencing. However, going further and nominating a global headline sentence, while certainly possible, complicates the sentencing process as we will explain. Before doing so, however, we feel it necessary to highlight some pertinent issues.
13. The first of these is that even if a global headline sentence is nominated, there ultimately requires to be an individual sentence for each individual offence, or at the very least a sentence or sentences for one or more offences with the others taken into consideration. It is preferable, however, not to have regard to the latter expedient. This was made clear in the case of The People (Director of Public Prosecutions) v Higgins (Unreported, Supreme Court, 22nd of November 1985) where Finlay C.J., in his judgment (with which Walsh J, Henchy J, Griffin J, and McCarthy J concurred) observed:
‘…the accused having been convicted on a number of charges arising out of the same incident but varying in the sense of their seriousness, the learned trial judge imposed upon him a sentence in respect of one count only and took the other counts into consideration. Having regard to the possibility that always exists of a court of appeal setting aside on some technical or other ground the conviction on a particular count, but leaving undisturbed the convictions reached on other counts on the same indictment, even though they arise out of the same incident, this would appear to be an undesirable and unsatisfactory procedure. Appropriate sentences should, in my view, be imposed on all counts in respect of which an accused person is convicted by the jury.’
14. Consistent with this, Professor O’Malley in his well regarded work, ‘Sentencing Law and Practice’ (3rd Ed), suggests (at para 31.55) that the statutory provision on foot of which other offences may be taken into consideration, namely s.8 of the Criminal Justice Act 1951:
‘was intended solely to allow defendants to ask for uncharged offences to be taken into account in order to forestall the possibility of a later prosecution for those offences. Yet, it is not uncommon for courts to take into account offences of which a defendant has actually been convicted. They impose a sentence for one offence and take the rest into consideration. Strictly speaking, a sentence should be imposed for each offence of conviction, though the overall impact can be mitigated by making custodial sentences concurrent rather than consecutive.’
15. Secondly, any individual sentence imposed cannot lawfully be disproportionately severe to the particular offence for which it is being imposed. However, the sentence imposed for the offence of conviction may be increased as a result of other offences properly being taken into consideration, provided the maximum penalty is not exceeded.
16. Thirdly, we suggest that quite apart from the issue identified in the penultimate paragraph above, a further reason exists as to why the option of taking an offence or offences into consideration requires to be used sparingly in this type of case, i.e., where an accused is being sentenced for a series or spree of similar offences, namely, that it carries with it the risk that an impression may be given either to the offender, or to a relevant victim, or to both, that the offender is in some respect getting “a free ride” in respect of an offence or offences for which discrete sentences are not imposed. (A “free ride” was how the Manitoba Court of Appeal put it in R v Wozny 20 MBCA 115, a case cited in that regard by Prof. O’Malley in the work previously cited, at para 15.39).
17. The principal of proportionality in sentencing is a constitutional requirement and has to be at the forefront of every sentencing judge’s mind. In State (Healy) v Donoghue [1976] IR 325 (SC) 353, Henchy J opined that cumulatively Article 38. 1, Article 40.3.1 , Article 40.3.2 and Article 40.4.1o of the Constitution necessarily imply, ‘at the very least, a guarantee that a citizen shall not be deprived … where guilt has been established or admitted, of receiving a sentence appropriate to his degree of guilt and his relevant personal circumstances’.
18. Proportionality in this context means proportionality in its ordinary meaning (see Whelan & Lynch v Minister for Justice [2010] IESC 34, [2012] 1 IR 1 (54); see also Osmanovic v DPP [2006] IESC 50, [2006] 3 IR 504 [34] (Geoghegan J) endorsing the comments of Flood J in People (DPP) v W.C. [1994] 1 ILRM 321 (HC) 325 concerning proportionality in sentencing), and has a different meaning to the proportionality referred to in the context of the constitutional ‘doctrine of proportionality’ as expounded in Heaney v Ireland [1994] 3 I.R. 593.
19. The former Court of Criminal Appeal has said in The People (Director of Public Prosecutions) v McCormack [2000] 4 IR 356, at 359, that ‘[t]he sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused.’ Accordingly, a sentence has to be proportionate in both of these respects.
20. The totality principle is potentially engaged whenever a court is seeking to reflect the overall gravity of two or more offences for which an accused faces sentencing, either by means of overlapping sentences, or wholly consecutive sentences. It permits a court to adjust the final sentence, and some or all of its individual components, as required to reach an overall figure that is proportionate both to the gravity of the offending, but also to the circumstances of the individual offender.
21. It is most frequently seen to operate where a court approaches sentencing on the basis of first determining in the normal way the appropriate post mitigation sentence for each individual offence, and whether and to what extent those sentences should be consecutive or concurrent inter se, without reference to any consideration of what cumulative figure it may result in. The Court is then required to step back and give consideration to the resultant cumulative figure and if necessary adjust it downwards, with appropriate pro-rata adjustments to the individual component sentences, so as to avoid the imposition of a ‘crushing’ sentence on the offender.
22. The main criticism of this approach is that it may result in artificially inadequate sentences having to be imposed for individual offences in order to give effect to the principle.
23. However, it is open to a court to adopt a different approach, but one which again may bring the totality principle into play. Certainly, if this approach is adopted there will require to be an acute focus on proportionality at every stage. It is open to a sentencing court, where it is sentencing for multiple offences, before considering what actual sentences should be imposed in respect of individual offences, and whether and to what extent individual sentences should be concurrent or consecutive inter se, to determine in the first instance a global pre-mitigation sentence reflective of the overall gravity of the offending conduct.
24. Clearly, in making such a determination, any global figure selected by the sentencing court is required to be proportionate to the gravity of the totality of the offending conduct, but no more than that.
25. Then, with the selected global headline sentence as a reference point, the court must proceed to assess gravity in the case of each individual offence and by resort to a combination of concurrent and consecutive sentences to ensure that the cumulative total aligns with the global headline figure selected, by making adjustments up or down as required. (This may not prove to be as easy as it might appear at first glance because, as pointed out earlier, no one sentence should be disproportionately severe to the offence for which it is being imposed.) Appropriate discounts should then be applied to each individual component sentence to reflect mitigation.
26. If the discounting for mitigation has been appropriate and proportionate to the offender’s personal circumstances, as it should be, the accumulated post-mitigation individual sentences, structured as previously determined with respect to whether they should be concurrent or consecutive inter se, will yield a final figure that meets the overall proportionality requirement.
27. However, if a sentencing judge is in any doubt as to whether his/her presumptive final figure is in fact proportionate, then, once again, in application of the totality principle, he/she should step back and consider whether that presumptive final figure requires further adjustment in the interests of achieving overall proportionality.
28. The advantage of the global headline sentence approach is that it is arguably the approach to sentencing [for] multiple offenders [sic, should read offences] that may be most effective in achieving a degree of general deterrence. The nomination of a global headline sentence, which may well be highlighted in any media reporting of the case, will communicate very clearly how the court views the overall gravity of the offending conduct that was committed in the course of the spree. This is what the DPP believes was required in the present case. However, the disadvantage of the approach is that it is complicated to give effect to correctly.’
29. It is a matter for individual sentencing judges to adopt the approach with which they are most comfortable, and which seems to them most appropriate in the circumstances of an individual case.”
34. The approach adopted by the sentencing judge in this case approximates to that described in paragraphs 23 to 26 inclusive of our judgment in Casey . However, the sentencing judge’s approach was to use post-mitigation sentences throughout, rather than pre-mitigation sentences. This is another way of getting to the same destination, but not one that we would recommend for precisely the reason identified by the appellant in his submissions, namely that it is impossible to determine the degree to which there has been discounting for mitigation. The process by means of which the post mitigation components of the ultimate global figure were determined upon is not apparent. Consequently, it is more difficult for an appellate court, faced with a complaint of lack of proportionality on the part of the sentencing judge, to determine whether or not that is so.
35. This is not the first time this issue has arisen. The dilemma it presents is well captured by Thomas O’Malley in his work entitled “Sentencing Law and Practice” , 3rd ed, at paragraph 5-28 where he states:
“Judicial opinion has varied over whether a court should always begin by determining a sentence for each offence before deciding if they should be concurrent, partly concurrent or consecutive, and before applying the totality principle. The other approach would be to decide first on the overall sentence appropriate for the totality of the offending conduct and then, if necessary, indicate sentences for the particular offences and combine them in such a way as to arrive at the desired total. Without being absolutely prescriptive, it is suggested that the first approach is preferable, although it is not always followed in Ireland. The sentences imposed for the various offences will remain on the offender’s record and it would be unfair if he or she were recorded as having received a higher sentence than an offence might have merited had it not been combined with other sentences. This may have significant consequences if the offender is reconvicted in the future. When reviewing previous convictions, courts usually take note of the nature and severity of the penalties imposed. Secondly, one or more convictions may later be quashed following appeal or review, but the offender may still be liable to serve sentences for surviving convictions. Again, it is important that those sentences should be no longer than the relevant offences objectively merited.”
36. Accordingly, although it was not an error of principle per se to have approached matters in the way that the sentencing judge did, it was not best practice for the reasons indicated. If, in the circumstances, we conclude that the approach adopted resulted in any individual sentence or sentences being disproportionate to the gravity of the relevant offending conduct, or to the circumstances of the offender, we would be unable to uphold them, and the resultant global sentence figure, unless that disproportionality had later been compensated for by way of an appropriate adjustment (and we wish to make clear that having to resort to this would have been sub-optimal for all of the reasons suggested by O’Malley) in arriving at the ultimate global sentence figure.
37. In respect of the indecent assault counts, which were pre-1981 offences and the victim was a female, the maximum potential penalty was two years’ imprisonment at the time they were committed. The Oireachtas later increased the penalty to 10 years for such offences committed between 1981 and 1990, but the increased penalty doesn’t apply in this case as the offences involving “F” were committed in the 1970’s. It is also noteworthy that the types of offending conduct that were embraced by the old offence of indecent assault of a female have since 1991 been distributed between the new offences of sexual assault and aggravated sexual assault created by the Act of 1990. The offence of sexual assault (which involves conduct amounting to the former indecent assault but without serious violence or the threat of serious violence or causing injury, humiliation or degradation of a grave nature to the person assaulted, now attracts a maximum penalty of five years. The aggravated version of the offence, which comprises a sexual assault that involves serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted carries up to life imprisonment.
38. Be all of that as it may, a person must be sentenced, and the gravity of his or offending conduct must be assessed, with reference to the range of penalties applicable at the time that an offence was committed. Doing so does not, however, prevent a sentencing judge, who is sentencing an offender on sample counts for a course of offending that has gone on over a lengthy period, from treating the sample offences as being aggravated by the very fact that they were committed during a course of similar offending that went on for a lengthy period. In addition, if other offences are being taken into account it is in order to reflect this fact in a somewhat higher sentence than the offence considered on its own would otherwise merit.
39. In this case, although the appellant had pleaded guilty to three counts of indecently assaulting F, the sentencing judge only imposed a sentence on two counts and took the other one into consideration. We reiterate the reservations previously expressed by this Court, in the Casey case cited above, about matters being taken into consideration where the offender has pleaded guilty to such an offence on arraignment. Ideally there should have been discrete sentences on each count.
40. Be that as it may, in sentencing the appellant for these offences, the sentencing judge was obliged to assess the gravity of the indecent assaults with reference to the offender’s culpability and harm done, and to locate the offences on the scale or spectrum of available penalties. We consider that even though the available range of two years would have embraced all potential forms of indecent assault of a female, including what is now aggravated sexual assault, and notwithstanding that the indecent assaults in this case were not of that variety, it was nevertheless legitimate for the sentencing judge to regard the gravity of the present offences as being serious due to the multiplicity of aggravating factors associated with their commission, which included the age of the victim, the age disparity between the victim and the appellant, the breach of trust involved, and the fact that they were committed during a course of similar offending that went on for a lengthy period; and the harm done. In addition, as it was the intention of the sentencing judge to sentence on just counts nos. 1 and 10, and to take count no 5 into consideration, the sentences on counts nos. 1, and 10, respectively, could in theory have been made higher than would otherwise be merited on that account. In practice, however, any such increase could only be very slight in the circumstances of the present case because it is likely that if a discrete sentence had in fact been imposed on count no. 5, it would almost certainly have been made concurrent to either, or both, of counts nos. 1, and 10, respectively, as it involved the same victim and the same type of offending.
41. In all of these circumstances, was it justifiable for the sentencing judge to have selected the maximum possible penalty as his starting point? On balance we consider that it was not, save in one incidence, notwithstanding that the offences were serious. The exception relates to the incident described in evidence as happening when F was 13 and her mother had gone to England, and in which the appellant got in to F’s bed, then climbed on top of F and attempted to put his penis in her vagina. We believe this to have been count no. 10. Although, not charged as such, this was in reality an attempted rape, and starting at the maximum of two years would certainly have been justified in that case. The other indecent assaults, however, did not go beyond non penetrative touching of the victim’s breasts and genitalia, and starting at the maximum would not have been justifiable in those cases. It was not justifiable because if, for example, the form of offending had been oral rape, or digital penetration of the vagina or anus, or if the indecent assaults had been associated with violence or extreme degradation, the same penalty would have to have been imposed. We therefore consider that to have started at the maximum penalty for all of the indecent assaults, and not to have differentiated between them in terms of their gravity, was an error of principle.
42. Moreover, even if the maximum available penalty was a justifiable starting point, and we have accepted that in one case it was, what the sentencing judge in fact did was to go further and to select the maximum possible penalty as the post-mitigation penalty, meaning that he was not prepared to afford any discount at all for mitigation. This was in circumstances where there were quite substantial mitigating circumstances in the case. The appellant had in effect self-reported his offending conduct. He was fully co-operative with the investigation. He had pleaded guilty at the earliest opportunity. Moreover, it is the understanding of the court that the intention to plead guilty may have been intimated before any question of possible disclosure of medical records would have arisen, which is further to his credit. The requirement to have to disclose sensitive private records can be further distressing for a victim. He was genuinely remorseful, and he was elderly at the date of sentencing. While it would have been unorthodox to do so, and far from best practice, the failure to afford discount for mitigation at this stage could have been compensated for by discounting later from any pre-mitigation global figure to give a final post-mitigation global figure. Although the sentencing judge claimed that his global figure of seven years was a post-mitigation figure, the objective evidence does not suggest that any, or certainly any significant, discount was in fact afforded. The failure to afford an adequate discount for mitigation in the case of the indecent assaults was an error of principle.
43. Turning then to the sexual assault counts. In this instance, although the appellant had pleaded guilty to three counts of sexually assaulting N, he only imposed a sentence on one count and took the others into consideration. We again make the point that, ideally, there should have been discrete sentences on each count.
44. The maximum potential penalty was five years in this instance. The nature of the offending conduct comprising the sexual assaults for which the appellant faced sentencing involved inappropriate touching of the complainant’s unclothed body at different times, including entering her bedroom while she was in bed, pushing up her nightdress and pulling down her pants, and then licking her bottom as she lay in bed; and on another occasion simulating sexual intercourse by thrusting against her clothed body. Once again, these again were sample counts. In circumstances where sentencing was taking place on “a full facts” basis, it was again legitimate for the sentencing judge to regard the gravity of the offences before him as being serious due to the multiplicity of aggravating factors associated with their commission, which included the age of the victim, the age disparity between the victim and the appellant, the breach of trust involved, and the fact that they were committed during a course of similar offending that went on for a lengthy period; and the harm done.
45. In this instance, all we know is that the sentencing judge determined upon a post-mitigation sentence of three years, which suggests that he started somewhat higher than that. Though it is to speculate, it seems quite likely that his starting point would have been four, or possibly five, years. If he started at five he would have been too high in our view. Once again this not a case that justified the maximum sentence for sexual assault as a starting point. However, we consider that a starting point of four years would have been within the acceptable range. The appellant was also then entitled to a discount to reflect the not insignificant mitigating circumstances in the case, and we consider that it would have been appropriate to discount by 25%, leaving a post mitigation sentence of three years. In the circumstances, we consider that his ultimate sentence of three years for the sexual assault count was within the range of sentences open to the sentencing judge. While the process by means of which he arrived there lacks some transparency we would not be disposed to interfere with it, save for the fact that it is a component in a global sentencing structure that involves consecutive sentencing, and that has been skewed by errors of principle in assessing the appropriate sentences to be imposed for other components in the structure, namely the sentences for the indecent assaults. In the circumstances, though we would agree with the sentence imposed for the sexual assault offence if it had been imposed on a stand alone basis, we feel it necessary to quash the entire global sentence and re-sentence the appellant on all offences.
Re-sentencing
46. We will impose discrete sentences on both counts nos. 1 and 5 respectively. In the case of those offences we determine the appropriate headline sentences to be sixteen months imprisonment in both cases, and we will discount from that by 25% to reflect mitigation, resulting in post-mitigation sentences of twelve months on those counts.
47. The sentences on counts nos. 1 and 5 are to be concurrent inter se.
48. Consistent with what we have said already we will nominate the maximum sentence of two years’ imprisonment as being the appropriate headline sentence for the most serious indecent assault, namely that charged on count no. 10. We will again discount from that by 25% to reflect mitigation, resulting in a post-mitigation sentence of eighteen months on that count. However, we consider that in circumstances where the nature of the offending conduct in this case was substantively different to that in the other indecent assault offences, it merits being made consecutive to the sentences on counts nos. 1 and 5 respectively. Accordingly, subject to the issue of totality, the cumulative sentences for the indecent assaults will amount to two-and-a-half-years’ imprisonment.
49. Moving then to the sexual assault offences, we have already indicated that we agree with the post-mitigation sentence of three years imposed by the sentencing judge on count no. 11. However, we consider it appropriate to also impose the same sentences on counts nos. 14, and 18 which the sentencing judge had merely taken into consideration. We will make the sentences for all of the sexual assault offences concurrent inter se, but as they involved a different victim we will make them consecutive to the sentence imposed on count no. 10.
50. The overall revised global sentence, before consideration of totality, is therefore five-and-a-half-years’ imprisonment. We consider this to be a proportionate global sentence and do not consider it necessary to effect any further reduction on foot of the totality principle. Neither do we consider it appropriate to suspend any portion of the final sentence.
51. The revised and final global sentence figure is therefore five-and-a-half-years’ imprisonmen
People (DPP) v McKenna (No. 2)
[2002] 2 I.R. 345
In accordance with the provisions of s. 28 of the Courts of Justice Act, 1924, a single member delivered the judgment of the court.
Geoghegan J.
9th May 2002
This is an application under s. 2 of the Criminal Justice Act, 1993, by the applicant to review 31 sentences of three years, imprisonment to run concurrently in respect of nineteen convictions for indecent assault during the period from the 1st November, 1985, to the 18th January, 1991 and twelve convictions for sexual assault committed in the period from the 18th January, 1991, to the 31st December, 1993. The offences of “sexual assault” were, of course, committed after the coming into operation of s. 2(1) of the Criminal Law (Rape) (Amendment) Act, 1990. Under the
[2002]
2 I.R. The People (Director of Public Prosecutions) v. McKenna (No.2)
Court of Criminal Appeal 347
C.C.A.
Criminal Law (Rape) Act, 1981, the maximum sentence for indecent assault had been ten years’ imprisonment. The Act of 1990 effected a name change in that the common law offence of “indecent assault” was renamed”sexual assault” but that Act created a new statutory offence of aggravated sexual assault. Because of the existence of the two offences, the maximum sentence for “sexual assault” was reduced by the Oireachtas to five years and the maximum sentence for “aggravated sexual assault” was to be imprisonment for life.
The amendments effected by the Act of 1990 have always caused difficulties for trial judges. First of all, there is the question as to whether as a matter of law a judge imposing sentence after the Act of 1990 came into force in respect of an “indecent assault” before that Act was nevertheless confined to a maximum sentence of five years. Secondly, there was the problem that even if that was not the case, it might seem inappropriate if there were a series of offences, some committed before the Act and some after, that a higher sentence should be imposed for the offences committed before the Act. It may well be that the trial judge in this case considered that, in respect of all the offences, the maximum sentence which he could impose was five years.
But the Circuit Court Judge was confronted with a further difficulty. There have undoubtedly been decisions of this court which indicated that the imposition of consecutive sentences should be the exception rather than the rule and, in particular, this court approved concurrent sentences in some instances where there had been a series of sexual offences: The People (Director of Public Prosecutions) v. Coogan (Unreported, Court of Criminal Appeal, 29th July, 1997) and The People (Director of Public Prosecutions) v. Z. (Unreported, Court of Criminal Appeal, 14th March, 1995).
These preliminary comments are made with a view to providing a rational explanation as to why an experienced trial judge imposed what, on any view, must be regarded as an exceptionally lenient sentence.
The victim, Sorcha McKenna, was sexually abused by her own father, the respondent, more or less continuously from the time when she was approximately four years old until she was approximately twelve years old. To quote the victim impact report:-
“The sexual abuse consisted of attempted penile-anal penetration; actual digital-vaginal penetration, digital-anal penetration, fondling of her genitals, oral sex (both fellatio and cunnilingus), forced penile masturbation on a regular systematic basis (approximate two to three times weekly) over the eight year period.”
It seems reasonably clear from the transcript that the Circuit Court Judge, in sentencing the respondent, took into account as a mitigating factor the rather unusual circumstance that the respondent had taken a strong public stance while living in Belfast against terrorism and that he had been associated with an organisation called “Families against Intimidation and Terror” and furthermore, that he had spoken out for a group of people who were taken to back alleys and knee capped. As counsel for the respondent had pointed out to the trial judge, the corollary of all of this was that huge publicity attached to this case, especially in the context that his daughter, the victim of the offences, had waived anonymity. The trial judge did not overlook the non-mitigating factors such as the particularly degrading nature of some of the offences and the fact that the respondent fought the charges all the way to the jury.
The judge was entitled to some extent to take into account as mitigating factors the special history of the respondent and the extreme adverse publicity surrounding the offences but given the approach which the Circuit Court Judge adopted, this court considers that he fell into error in directing that all the sentences were to run concurrently. The judge had a discretion, which in the circumstances, he ought to have exercised, to impose a consecutive element in the sentences.
The problems relating to concurrent and consecutive sentencing are highlighted in the excellent treatment of the subject by Professor Thomas O’Malley in his book Sentencing Law and Practice at p. 171ff. At p. 173 Professor O’Malley makes the following observations at para. 6-85:-
“Irish courts have, for the most part, favoured concurrent sentencing for serial sexual offending. The Court of Criminal Appeal has recently said, in relation to an appellant given concurrent sentences in respect of a series of sexual assaults, that:
‘We agree that, strictly speaking, it was within the judge’s power to impose a consecutive sentence but that is a very exceptional course in cases which bear a close resemblance to one another and happen within a reasonably short time scale. The invariable practice seems to be to impose concurrent sentences in such a situation, and so we do not fault the judge for taking the course that he did’.”
That case, ( The People (Director of Public Prosecutions) v. Coogan (Unreported, Court of Criminal Appeal, 29th July, 1997)), was decided ex tempore on its own facts which were altogether less serious than this case. It should be regarded merely as authority for the view that, on the facts of that case, the Circuit Court Judge was not in error in exercising his discretion in favour of concurrent sentences. A more useful case on this subject is The People (Director of Public Prosecutions) v. Z (Unreported, Court of Criminal Appeal, 14th March, 1995). In that case this court both reduced the length of the sentences imposed and altered them to be concurrent rather than consecutive sentences. It is implicit, however, in the judgment delivered by O’Flaherty J., that the court was in tune with the submissions made before it by counsel for the defendant. At p. 11 of the unreported judgment delivered on the 14th March, 1995, the following passage appears in relation to consecutive sentencing:-
“Mr. Haugh submits in regard to the imposition of a consecutive sentence that, as a matter of principle (aside from a statutory requirement to impose a consecutive sentence), the circumstances most likely to attract such a course in cases such as this would involve that the accused had engaged in sexual misconduct with different persons or over a much longer period of time than is the case here and that, perhaps too, the misconduct would have been attended with circumstances of depravity beyond the actual act of intercourse.”
There were no doubt different options open to the Circuit Court Judge in structuring the sentences in this case, but given the view he took that each of the offences should attract the same length of sentence, the overall sentence, quite obviously did not reflect the”circumstances of depravity” which attended many of the continuous indecent and sexual assaults in this case, especially in the context of relations between a father and an underage daughter. In the written submissions on behalf of the applicant and in the oral submissions in this court by counsel on the applicant’s behalf, it has been suggested that consecutive sentencing is peculiarly appropriate having regard to the apology which was given to the defendant’s daughter by him and the promise of non-repetition which was breached. The precise nature of that apology and promise was in dispute at the trial, but it is a matter referred to by the Circuit Court Judge in the transcript of his sentence. The judge refers to Sorcha McKenna’s evidence to the effect that there was an occasion when her father, in 1990, apologised for what had happened and she said she felt somewhat betrayed then that the abuse nevertheless continued. The court has considered these submissions but has come to the conclusion that, for the reasons put forward by counsel for the respondent and particularly having regard to the dispute as to the nature of the promise, the court should not adopt the alleged promise as the linchpin for consecutive sentencing. However, the overall sentence would quite clearly be excessively lenient if all the sentences remained concurrent. The court notes that”not guilty” verdicts were entered by direction in respect of counts No. 16 and 17 because they related to the periods from the 1st August, 1989 to the 1st November, 1989 and the 1st November, 1989 to the 1st February, 1990, when the accused was apparently out of the jurisdiction. During those periods, he had time to reflect and it was particularly reprehensible that he should resume the offending after the 1st February, 1990. The court, therefore, considers that taking that factor into account and taking into account the particularly depraved nature of some of the offences, the sentences in respect of counts 18 to 33 should be concurrent with each other but should run consecutively to the concurrent sentences imposed in respect of counts 1 to 15. The court is strongly of the view that it would be an injustice to the public not to impose consecutive sentences in this case. The formal order which the court will make under s. 2(3) of the Criminal Justice Act, 1993, is to quash the sentences already imposed and, in lieu thereof, impose like sentences of three years but with the consecutive element referred to above. The overall effect of this review of the sentence will be that the accused will serve a six year sentence instead of a three year sentence. The sentences will run from the 10th November, 2000, which was the commencement date directed by the trial judge.
People (DPP) v Wallace
[2007] I.E.C.C.A. 4
Judgment of the Court delivered by Denham J. on the 2nd day of February, 2007
1. Wayne Wallace, the applicant, (hereinafter referred to as ‘the applicant’), who having been convicted of the offence of robbery and sentenced to nine years imprisonment, brings this application for leave to appeal against the severity of the sentence.
2. The applicant was before the Circuit Criminal Court, Dundalk on 11th March, 2003, was arraigned, and pleaded guilty to Counts 2 and 4 on the indictment. These are:
Count No. 2
STATEMENT OF OFFENCE
Robbery contrary to Section 23 of the Larceny Act 1916 as inserted by Section 5 of the Criminal Law (Jurisdiction) Act 1976.
PARTICULARS OF OFFENCE
Wayne Wallace on the 3rd day of December, 2001, at Value Centre Cash and Carry, Castle Road, Dundalk, in the County of Louth, robbed one Owen Short of cash the amount of £40,438.26 in punt (€51,346), electrical goods to the value of £1,202.65 in punt (€1527.05), wine and champagne to the value of £468.02 in punt (€594.24), cigarettes and tobacco to the value of £234,478 (€297,725.65) which totals £276,589.93 in punt (€351,196.77)
Count No 4
STATEMENT OF OFFENCE
Robbery contrary to Section 23 of the Larceny Act 1916 as inserted by Section 5 of the Criminal Law (Jurisdiction) Act 1976.
PARTICULARS OF OFFENCE
Wayne Wallace on the 15th day of July, 2002, at Fergusons Caravan Park, Maddoxland, Carlingford, in the County of Louth, robbed Anthony Ferguson of property to wit cash in the sum of €20,800, sterling to the amount of £1,300, and cheques totalling €7,000.
3. The applicant was before the Circuit Criminal Court, Dundalk on 3rd June, 2003 when evidence was given in relation to his sentence. On that day the applicant and a co-accused were before the court. Both had pleaded guilty to the robbery at the Value Centre Cash and Carry. The applicant had also pleaded guilty to an offence at Ferguson’s Caravan Park, Carlingford, Co. Louth. Counsel dealt with the Value Centre Cash and Carry offence in relation to both accused first and then proceeded to deal with the single count against the applicant.
4. The trial judge adjourned giving sentence until 6th June, 2006, when he stated:
“Mr. Wallace has pleaded guilty to two counts, first which alleges robbery of the Value Centre Cash & Carry, Dundalk on 3rd December 2001 and Count 4 which alleges robbery of Ferguson’s caravan park, Carlingford, 15th July 2002. These are effectively armed robberies. The facts of the first case, the Cash & Carry, being that Mr. Wallace, together with other persons in garda uniforms gained entry by reason of the garda uniforms to the Cash & Carry, and whilst present there, they mustered together the staff. As that was taking place, some 12 armed and masked persons entered the premises. Those tied up the staff. Some of the staff were ill-treated, they were hit or kicked about the person. Apparently, the accused was the only one with red or ginger hair present, he was not disguised.
The manager had a gun pushed into the back of his head whilst he was lying on the ground, and the description of the man who did that is a description of Mr. Wallace. I am asked to infer from the evidence that there was no other person in the gang, as it were, who met that description and it could only have been Mr. Wallace who pushed the gun into the back of the manager’s head.
There was a lady member of staff who was also maltreated and had a gun put to her neck. Some of those involved had to receive hospital treatment.
There were two vans belonging to the Cash & Carry which were then used to take away tobacco products, cash and other items. The tobacco products having a value in punts of £234,478, cash of £40,000 odd punts, and a total value of all goods taken, including cash was £351,190. None of the cash or goods were recovered.
It is clear that this offence was one which was carried out with great care, with careful planning, and was one which was performed for the purpose of robbery and netted a considerable profit. It is true to say that Mr. Wallace claims to have received only a sum of £2,5000 (punts) in respect of that robbery. Nonetheless, he was an active participant, and I will come back to that in a moment.
The second robbery was carried out in July 2002. In that particular robbery, persons wearing garda uniform came to the door of the Ferguson house in Carlingford early in the morning of 15th July 2002, and by means of a ruse, they gained entry to the premises. Again, as the various members of the family were more or less mustered together, they were tied up. There were demands made for money, a rifle and a handgun was produced. The handgun was pointed at Niall Ferguson’s head and he was directed not to move.
Then by way of violence or threat of violence and force, the identity of the location of the monies was determined, and the key was ultimately produced and some 12,500 cash was taken from some bags in the safe and a further 3,800 (this is in euro) was taken elsewhere. The total taken in the Ferguson raid was somewhere in the order of 20,000.
The Fergusons, as I have said, were tied up with plastic tie raps, and a threat was made that the raiders would return and would get one of the Fergusons if it was the case that all monies on the premises had not been surrendered. A threat was made that there was a rat working in the building. This was a threat which was of serious concern to the Fergusons.
So far as the Fergusons are concerned, they themselves recovered from this ordeal, but none of the property that was stolen was recovered. So far as the victims to the Cash & Carry was concerned, they too achieved apparently a fairly full recovery, some had long sessions of counselling, but all have since recovered.
There are a number of factors in this case which must be viewed as aggravating factors to robbery. Indeed it seems to me that these factors are common to both cases. The first of these is the use of garda uniforms. These were used for the purpose of gaining the trust of the various persons who were to be the victims and that was successful.
Entry was gained to both premises by means of a ruse using the garda uniforms. There were firearms used on each occasion. In the instance of the Fergusons, a handgun and a rifle are referred to. In the case of the Cash & Carry, the 12 men who entered were armed. There is evidence that Mr. Wallace was armed and used his gun in the way in which I have described it, and the manager of the Cash & Carry, who had some experience in such matters, due to military training, clearly identified an ArmaLite rifle in the course of this robbery.
These criminals were seriously armed with extensive weaponry which was used for the purpose of intimidation and terrorising those who were to be obedient to the wills of these criminals.
The fact that the firearms were actually used, in the sense of being pointed to or being placed against the persons of the victims is another element which is common to both matters.
It is also the case that the violence that was offered to the victims in both instances again was immediate and personal to them. The victims were tied up. That is altogether apart from the fact that the firearms were used in a manner in which I have described them.
The amount of money or the value of goods taken in the robbery of the Cash & Carry was a very substantial figure. A figure of 351,000 euro. None of the goods or monies in either robbery were recovered and are factors with which I must have regard to.
I must have regard to the fact that there was careful, extremely careful planning and pre-meditation of these offences.
There is an issue in this case as to the involvement of Mr. Wallace in these robberies. He says that he was not a willing participant and was there only for the reason that he had been intimidated into co-operating. In that regard, I have been furnished with a medical report which related to an incident or a visit by Mr. Wallace to a hospital in September of 2001, and I am asked to draw the inference that that supports an element of intimidation. It does not seem to me that the connection that I am being asked to make is in anyway established by the evidence in the case.
Secondly, I have the evidence of the Inspector who is of the view and has given sworn evidence to the effect, that the gardai who investigated this matter have no doubt but that Mr. Wallace had a serious involvement in this matter, was a voluntary participant and took an active part in what happened.
Whatever the situation may be, and whilst I lead in favour of the Inspector’s view in that regard, what is undoubtedly the case and beyond contest is that Mr. Wallace was an extremely active and vigorous participant in all that took place.
I want to make clear that in my view Mr. Wallace has not established, on evidence, the connection which he seeks to make between intimation and his participation in these offence.
Matters which I have identified in favour of Mr. Wallace I must say are few, but they are as follows: in his statement to the gardai he gave a frank account of his involvement in these offences, notwithstanding that the gardai do not accept his contention of intimidation.
He has entered a plea before this Court at the earliest opportunity, and has therefore saved the Court and the State the time involved in prosecuting this matter to a conclusion.
He has expressed remorse and I have read letters which he has addressed to the victims of his crime. It may be that a view might be that this expression of remorse is timely, at all events, I do note that there is an expression of remorse and the Probation and Welfare Report establishes that Mr. Wallace is a model prisoner who has undertaken his own rehabilitation whilst in prison. That may be a long road, but nonetheless it is one which has commenced with some vigour by Mr. Wallace.
The seriousness of these offences are required to be marked by the imposition of a long term of imprisonment, that is unavoidable. I am also of the view that it is unavoidable that the sentences which I must impose are regarded to be consecutive.
In respect of count number 2, the robbery of the Cash & Carry, I impose a term of 6 years imprisonment. In respect of count 4, robbery of Ferguson’s caravan park, I impose a term of six years imprisonment. These sentences must be consecutive. I am required where consecutive sentences are imposed, I am required to consider the totality of the sentence and see whether or not the totality as it were constitutes or may constitute an element of excess.
I look again at the Probation and Welfare Report and particularly that part which refers to this man as being a model prisoner who is anxious about his rehabilitation. I have determined in the circumstances to suspend the final three years of the second sentence which effectively means that the sentence to be served by Mr. Wallace, resulting from my order is one of nine years imprisonment. That sentence will commence from the day in which Mr. Wallace went into custody. Mr. Segrave, Mr. Smith, would you remind me of that date?
MR. SMITH: 29th September 2002.
JUDGE: 29th September 2002, is that correct, Mr. Segrave?
MR. SEGRAVE: Yes, my Lord.
JUDGE: So be it.”
5. The grounds filed on behalf of the applicant on this application for leave to appeal against the severity of sentence are as follows:
1. That the Learned Trial Judge erred in law and in fact.
In failing to take into account that the applicant’s co-accused had received a 5 year suspended sentence.
In failing to afford the applicant the opportunity to call character witnesses.
In failing to allow the applicant to submit a letter of apology to the trial Judge, as to the reason why he could not name any of his accomplice’s
In failing to take into account that the applicant had pleaded guilty at the first available opportunity in the District Court.
In failing to take into account that the applicant had gave a statement of admission as soon as he was arrested (9 months after the offence) on the 27th of September, 2002.
That in all the circumstances the sentence of the applicant was unfair.
6. Counsel on behalf of the applicant submitted that the trial judge had erred (a) in giving consecutive sentences, and (b) in not giving reasons for the consecutive sentences. Further he submitted that there may have been cross referencing of aggravating factors between the offences.
As to the issue of consecutive sentencing per se, the Court is satisfied that there was no error in principle by the learned trial judge. As has been set out previously in this judgment, these were two very grave offences – indeed a sentence of 12 years for each with three years suspended would not have been inappropriate. The individual sentences of six years, in light of the nature of the offences, were light, and in the circumstances the giving of consecutive sentences was not an error in principle. Consequently the Court would refuse the application on this basis.
As to the necessity to give reasons for consecutive sentences, the Court was referred to Hadjianastassiou v. Greece [1993] 16 EHRR 219, Ruiz Torija v. Spain [1994] 19 E.H.R.R. 553, paragraph 29; and Garcia Ruiz v. Spain [2001] 31 E.H.R.R. 22, at 589, paragraph 25. In Garcia Ruiz v. Spain, at paragraph 26, the court reiterated that according to established case law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. Further:
“The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case.”
This Court is satisfied that it is desirable for a sentencing court to give reasons when imposing consecutive sentences. However, this Court retains its inherent jurisdiction to do justice. Thus the circumstances of each case should be considered by a court.
In this case there was a careful, reserved, judgment by the trial judge, which has been set out previously in this judgment. While no express reasons for the consecutive sentences were given, express reasons for the sentences were addressed. Inherent in the judgment are the reasons for the sentences. Counsel asked the trial judge to clarify the matter stating:
“Can I clarify one matter. You have expressed the view to impose a consecutive sentence as you felt it was necessary. I take it that was your view on the facts as opposed to any statutory implication you felt?
JUDGE: It is my view that consecutive sentences are appropriate.”
In the circumstances, given the lengthy reserved judgment, and the general reasons stated therein as to the sentencing, it is clear that the word ‘appropriate’ should be construed in light of the particular facts of the case as set out. It is in these circumstances that the Court exercises its discretion. In exercising the discretion the court considers the facts of the case and the sentences given.
The Court has considered the totality of the sentence, that is 12 years with the last 3 years suspended, a sentence of, in effect, 9 years. The Court is satisfied that such a sentence is not an error. Both offences were very serious and it would not have been inappropriate if the applicant had been given a sentence of 12 years on each, with 3 years suspended, to be served concurrently. Thus taking the totality of the sentence there was no error.
Then there are the specific reasons stated for the sentences in the reserved judgment of the trial judge. These were set out in detail.
In all the circumstances, the Court is satisfied that the lapse by the trial judge in not giving reasons for the consecutive sentences was not such an error in the particular circumstances of the sentencing as to require the Court to intervene in what it considers to be a proportionate sentence. Thus, in light of the terms of the reserved judgment and the total sentence of 9 years, the Court would not intervene with the sentences. Therefore, deeming the application for leave to appeal as the hearing of the appeal, the Court would dismiss the application.
DPP -v- John Costolloe
[2009] IECCA 28 (02 April 2009)
Finnegan J.
de Valera J.
McMahon J.
DIRECTOR OF PUBLIC PROSECUTIONS
.v.
JOHN COSTELLOE
APPLICANT
Judgment of the Court delivered on the 2nd day of April 2009
by Finnegan J.
The applicant pleaded guilty to the possession of drugs for sale or supply contrary to the Misuse of Drugs Act 1977 as amended. The offence was committed on the 1st September 2004. He was sentenced to twelve years imprisonment with the last two years thereof suspended. A co-accused Séan Hanley was sentenced to ten years imprisonment. The circumstances of the offence are as follows.
On the 1st September 2004 Gardai carried out surveillance of a Volvo motor car. The applicant was the driver and the co-accused Séan Hanley a front seat passenger. The Gardai switched on the flashing blue light and an attempt was made by the Volvo to evade the Gardai. A package was thrown from the passenger window. This was recovered and was found to contain amphetamines with a value of approximately €45,000. The applicant was arrested and at interview exercised his right to silence. He did not co-operate with the Gardai. He exercised his right to silence under section 17 of the Criminal Justice (Drug Trafficking) Act 1996. On the second day of his trial he changed his plea to one of guilty.
At sentencing the applicant relied upon a number of reports. He informed the Probation Service, according to the report, that his passenger, Sean Hanley, had no knowledge of the drugs and that the applicant had instructed him to throw them from the car. That report contained a risk assessment: the applicant if he is to reduce the risk of re-conviction in the future must disassociate himself from his companions and address problems in relation to employment and addiction. A psychiatric report was submitted from which it appears that while he had been a drug user and had difficulties with suppliers in relation to monies owed for drugs he was off cocaine at the time of the offence.
The applicant was born on the 16th March 1981 and is now aged twenty seven years. He has had a partner for the past eight years and they have two children aged five years and three years.
He has nine previous convictions including the following:-
15th June 2006: section 49 Road Traffic Act 1961.
15th March 2006: section 6 Criminal Justice (Public Order) Act 1994: sentenced to two months imprisonment suspended for twelve months.
26th October 2004: Criminal Justice (Public Order) Act 1994.
10th March 2004: section 2 Non Fatal Offences against the Person Act 1997 assault: sentenced to community service one hundred and twenty hours.
10th March 2004: Criminal Justice (Public Order) Act 1994.
18th November 1998: section 112 Road Traffic Act 1961: sentenced to community service two hundred hours.
In the course of the sentencing hearing counsel on behalf of the applicant relied on the applicant’s plea of guilty. He offered the opinion that there was a statable defence. He concluded as follows:-
“As I say, the only mitigating factor that can be raised at all is the fact that he has put his hands up, to his own detriment and I hasten to add, and I can tell you on the record I am not one bit happy about it, but there that is the reality.”
The learned trial judge in these circumstances was required to have regard to section 27(3B) of the Misuse of Drugs Act 1977 as inserted by section 5 of the Criminal Justice Act 1999. On this appeal on behalf of the applicant it was submitted that the sentencing process was truncated and that without sufficient enquiry the learned trial judge held that none of the relieving features of section 27(3C) applied. Further the learned trial judge failed to give sufficient weight to the mitigating circumstance relied on and failed to give appropriate credit for the plea of guilty.
The learned trial judge’s ruling on sentence is indeed pithy. In relation to mitigating circumstances he had this to say:-
“I can find no mitigating circumstances. Mr Costelloe went to trial. He changed his plea from that of not guilty to guilty on the second day of the trial. He, in his interviews, was of no great assistance to An Garda Siochána. I take on board what has been said by his partner, Ms Wyse, and I can understand his father’s upset. I have before me a Probation Service Report of the 5th February 2007 which sets out pretty fairly, I think, Mr Costelloe’s background and current circumstances. It also sets out that he owed money to drug dealers; but unfortunately people who owe money to drug dealers are all the more vulnerable to be used as mules to ferry drugs from point A to point B, which seems to be part of what was going on on this occasion.
Because of the value of the drugs being at the bottom range of a section 15A offence, although it is a multiple of the €13,000 nominally, I will impose a sentence of twelve years imprisonment and I will suspend the last two years of that, the condition being that he keep the peace and be of good behaviour towards the people of Ireland on his own bond of €100, that two years to be suspended for a period of two years, his bond to be taken before the Governor at whatever prison he is then incarcerated in.”
The maximum sentence for an offence under section 15A as provided for in section 27 as amended of the Misuse of Drugs Act 1977 is one of life imprisonment. However section 27 as amended goes on to provide as follows:-
“(3B) Where a person (other than a child or young person) is convicted of an offence under section 15A the court shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than ten years imprisonment.
(3C) Subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than ten years imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matters it considers appropriate including –
(a) whether that person pleaded guilty to the offence and, if so, (i) the stage at which he indicated the intention to plead guilty and (ii) the circumstances in which the indication was given, and,
(b) whether that person materially assisted in the investigation of the offence.”
The court is not confined to consideration of the matters mentioned at (a) and (b) in subsection (3C) but will have regard to all the circumstances which are exceptional and specific relating to the offence. It is likewise the case that all circumstances which are exceptional and specific relating to the offender are to be regarded. In this case, in the view of the court, the only relevant circumstance that could be relied upon is the plea of guilty. As is clear from the extract from the sentencing ruling quoted above this circumstance was indeed taken into account by the learned trial judge and he did not regard it as an exceptional and specific circumstance for the purposes of section 27(3C). The learned trial judge was correct in this. In Director of Public Prosecutions v Ducque, unreported, Court of Criminal Appeal 15th July 2005 Geoghegan J. said:-
“In considering whether the latter subsection applies or not, a plea of guilty without more and especially a late plea could not normally be taken into account because it would rarely if ever constitute ‘ exceptional and specific circumstances’.”
The approach to be adopted by the sentencing judge in relation to this offence appears clearly from the judgments of this court in a number of cases including Director of Public Prosecutions v Ducque, Director of Public Prosecutions v Chipi Renald, unreported 23rd November 2001, Director of Public Prosecutions v Galligan, unreported 23rd July 2003 and Director of Public Prosecutions v Lernihan, unreported 18th April 2007. The sentencing judge’s first task is to arrive at the appropriate sentence. The amount or value of the drugs is relevant. The provisions of section 15A make clear that the legislature regard this offence as serious in that the maximum sentence provided for is one of life imprisonment and subject to subsection (3C) the presumptive minimum sentence is one of ten years imprisonment. Even where exceptional and specific circumstances exist which would render the statutory minimum term of imprisonment unjust the presumptive minimum sentence cannot be ignored. Bearing the statutory provisions in mind a sentencing judge must first determine the appropriate notional sentence. In so doing he must bear in mind the statutory provisions. He must have regard to the circumstances of the offence and the particular offender. This requires consideration of circumstances which aggravate or mitigate the offence and circumstances relating to the offender relevant in mitigation of sentence. If the resulting sentence is a term of ten years or greater then that is the sentence to be imposed. Only if the notional sentence is less than ten years will it be necessary to consider section 27 subsection (3C).
In this case the learned trial judge in arriving at an appropriate sentence expressly had regard to the value of the drugs. He noted the applicant’s lack of co-operation with the Gardai at interview. He had regard to the evidence of the applicant’s partner Ms Wyse and of his father. He had regard to the applicant’s personal circumstances as disclosed in the Probation Service Report and a psychiatrist’s report. Finally he had regard to the plea of guilty and the time at and circumstances in which it was entered. He having carefully considered these matters the court can find no error of principle in the sentence in fact imposed.
The fact that the applicant was accepted by the learned trial judge as being “a mule” is a factor to be taken into account in determining the appropriate sentence. The fact that he owed money for drugs supplied to him is also a factor to be taken into account. The learned trial judge did not regard the late plea of guilty having regard to the time at which it was entered as a mitigating factor for the purposes of section 27(3C). The learned trial judge gave no reason for suspending two years of the sentence. The late plea or the nature of the applicant’s involvement in the drugs industry as a mule may explain the suspension of the last two years of the sentence imposed. However it must be borne in mind that a mule plays an important part in the drugs industry and without the mule’s involvement those involved at a more significant level would be less likely to escape detection, prosecution and conviction. The role of the mule is important and significant to those who operate at a higher level. However as the suspension represents a significant concession to the applicant this court will not interfere with the same notwithstanding that the basis for the same is unclear. The court is satisfied that the sentence imposed is appropriate having regard to the applicant’s involvement, the circumstances of the crime and the applicant’s circumstances and accordingly the sentence imposed is not in error of principle.
On behalf of the applicant there were available in court three testimonials. The learned trial judge refused to have regard to the same and confined himself to oral testimony on oath together with the Probation Report and the psychiatrist’s report. While such testimonials are frequently received and considered on consent, the learned trial judge was entitled to confine his consideration to evidence on oath and the reports admitted and to exclude from consideration the written testimonials.
On behalf of the applicant it is submitted that the sentence imposed on him is disproportionate to that imposed upon his co-accused who received a sentence of ten years imprisonment. It is a settled principle of sentencing that persons who have been parties to the commission of the same offence should, all other things being equal, receive the same sentence. It is equally well settled that difference in the degree of involvement in the offence and the personal characteristics of the co-accused such as age, background, previous criminal history and general character will justify a different sentencing outcome. People (D.P.P.) v Poyning [1972] I.R. 402 and People (D.P.P.) v Conroy (No. 2) [1989] I.R.160. It is irrelevant that the sentences may be imposed by the same court at the same time or by a different court or at a different time.
The court has had the benefit of the transcript of the sentencing hearing which followed the conviction of the co-accused Séan Hanley. Each co-accused was sentenced by a different court. The applicant was sentenced on the 26th February 2007 and Séan Hanley on the 10th June 2008. Séan Hanley gave an account of his involvement consistent with innocence but the same was not accepted by the jury. His account was that he was coming to Dublin for a wedding and that he got sick on the way. He met the applicant who drove him to Dublin. In Dublin he was not well enough to attend the wedding and returned to Limerick with the applicant. He was unaware of the presence of the drugs. It is of some significance that the applicant’s account exonerated Séan Hanley from any guilty involvement save and except that he was asked by the applicant to throw the drugs from the car. Having regard to the fact that Séan Hanley was found guilty it is reasonable to treat the co-accuseds as having equal involvement in the offence. There are differences in the personal circumstances of each of the co-accused. Séan Hanley was aged forty eight years at the date of sentence. He had then previous convictions in the period 1980 to 2006. A number of the offences were precipitated by his grief reaction to his son being killed and which killing led to a conviction for manslaughter. He suffers from a number of physical and psychiatric ailments which are significant and which will make his time in prison particularly difficult. One is a prolonged grief reaction to the death of his son which had resulted in admissions to a psychiatric hospital. He suffers from diabetes which in his case reduces his life expectancy. In his history there were a significant number of attempts at suicide. He continued to be at a high risk of completed suicide. Without going into more detail these personal circumstances are matters which the sentencing judge could take into account and which distinguish him from the applicant. In addition the sentencing judge was apprised of the sentence imposed on the applicant. These circumstances justify the very minor discrepancy between the sentences imposed on each of the co-accused.
Having regard to the foregoing the court refuses the applicant leave to appeal.
Wansboro v DPP
[2018] IESC 63
Judgment of Ms. Justice Dunne delivered on the 20th day of December 2018
1. The suspended sentence has long been an important feature of Irish sentencing practice. Section 99 of the Criminal Justice Act 2006, as amended, (hereinafter referred to as s. 99) sought to put a statutory framework around the procedures to be operated in respect of a suspended sentence, particularly in the context of the revocation of a suspended sentence. In the case of DPP v. Carter , and DPP v. Kenny [2015] IESC 20, this Court considered the provisions of s. 99 in the context of two cases stated. The majority judgment in that case was delivered by O’Donnell J. and at the commencement of his judgment he made the following observation:
“Section 99 of the Criminal Justice Act 2006 (‘the Act of 2006′) is an apparently innocuous procedural provision. It has already been amended twice in its short life (s. 60 of the Criminal Justice Act 2007, and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009). Nevertheless it has given rise to innumerable practical difficulties and problems of interpretation, only some of which are illustrated by the present cases. What these cases do demonstrate clearly however is that the provision is one of considerable complexity and difficulty, requiring some learned debate, fine distinctions and considerable argument. Only one thing is clear and beyond dispute: s. 99 is in need of urgent and comprehensive review.”
2. Section 99 has been subject to further review though perhaps not quite in the manner contemplated by O’Donnell J. in the judgment referred to above. The procedures for revocation of a suspended sentence to be found in subss. (9) and (10) of s. 99 were subsequently found to be unconstitutional in the case of Moore v. DPP [2016] IEHC 244. The question at the heart of this appeal concerns the extent, if any, to which the applicant/appellant in this case can rely on the finding of invalidity of s. 99(9) and (10) of the Act of 2006 to challenge his detention in respect of a sentence which had been suspended and was subsequently revoked by reason of a breach of the conditions imposed on the appellant when his sentence was suspended.
Background
3. The appellant was charged with three offences arising out of events which occurred on the 1st December, 2012. The offences involved were the unlawful taking of a motor vehicle contrary to s. 112 of the Road Traffic Act 1961 (as amended), an offence of drink driving and, finally, driving without insurance. He pleaded guilty to the three offences and at a sentence hearing on the 14th November, 2013, he was sentenced to three years imprisonment on the s. 112 charge and six months in respect of each of the other two charges, to be served concurrently with the three years sentence. The sentence was suspended on terms including that he keep the peace and be of good behaviour for three years. Other terms were imposed including a requirement to attend an alcohol awareness programme. Finally, the appellant was disqualified from driving for a period of four years.
4. On the 29th May, 2014, the appellant was involved in a serious incident which led to him being charged with dangerous driving causing death and serious bodily harm contrary to the provisions of s. 53(1) of the Road Traffic Act 1961, as amended. At the time, the appellant was driving the car in which there were two passengers when it came to the attention of the Gardaí. In the course of the incident, the appellant attempted to make a right turn at a junction, failed to do so and crashed into a tree. As a result, all three people in the car were injured and when the Gardaí came to the scene all three were unconscious. Unfortunately, the rear seat passenger in the vehicle died as a result of her injuries. Subsequently, the appellant was charged with the offences referred to and on arraignment on the 22nd April, 2015, the appellant pleaded guilty to the offence of dangerous driving causing death and serious bodily harm. On that occasion, given that the appellant had previously been the subject of a suspended sentence, the question of sentence for these offences was adjourned until the 18th May, 2015 for a hearing before Her Honour Judge Ring (as she then was). By way of background, it appears that when the appellant was brought before the Circuit Court for arraignment on the 22nd April, 2015, the judge presiding, Judge Nolan, was advised that there was a previous matter which had been heard by Judge Ring and it was on that basis that the matter was adjourned to the 18th May, 2015 pursuant to the provisions of s. 99(9) of the Act of 2006. Accordingly the appellant was remanded in custody for the purpose of considering the revocation of the suspended sentence, together with the sentencing hearing in respect of the matter to which the appellant had just pleaded guilty. On that date, Judge Ring heard evidence relating to the facts in respect of the dangerous driving causing death and serious bodily injury charge. She heard information in relation to the appellant’s background and circumstances and submissions from counsel for the appellant.
5. The learned trial judge in her sentencing remarks referred to the previous Bill number in respect of which the appellant had pleaded guilty. She lifted the suspension of the sentences in that pursuant to the provisions of s. 99(10) of the Act of 2006 and noted that they were to run concurrently. She observed that by virtue of the provisions of s. 99 of the Act of 2006, the sentence on the latter Bill number was required by law to be consecutive to the three year sentence. She referred to a number of the factors to be borne in mind in regard to the appropriate sentence to be imposed. She noted:
“Eric Wansboro drove this vehicle at a time when he was disqualified and on a suspended sentence. He drove at speed, without regard to anyone’s safety, through city streets. He ignored the garda requests to stop and continued on driving. He killed S. M. and seriously injured I. McD. I have to have regard to the totality principle in light of the matters on Bill 298/2012 in sentencing. However in this case I can’t overlook the fact that Eric Wansboro was fully aware of what was at risk and took that risk regardless. Had Eric Wansboro not pleaded not guilty the appropriate sentence would have been one of six and a half years. Taking these matters into consideration and weighing the limited mitigation in this case and having regard to the totality principle, I find that the appropriate sentence on count 2 on Bill 99/2015 is one of five and a half years.”
As previously mentioned that sentence was required to be consecutive to the sentence imposed in relation to the earlier offences.
6. Following the sentencing of the appellant, committal warrants were issued to give effect to the sentences imposed and accordingly the appellant was lodged in the custody of the second named respondent herein. On the 20th May, 2015, the appellant filed a notice of appeal against the order made in respect of Bill No. 298/2012 and also against the severity of the sentence imposed on Bill No. 99/2015.
The law
7. It would be useful at this stage to refer to the provisions of s. 99 of the Act of 2006 which are relevant to these proceedings. Section 99(9) provides as follows:
“Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, being an offence committed after the making of the order under subs. (1) the court before which proceedings for the offence are brought shall, before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order.”
Section 99(10):
“A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody other than a period spend in custody by the person in respect of an offence referred to in subsection (9)) pending the revocation of the said order.”
Section 99(17):
“A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.”
Moore & Ors. v. DPP & Ors. [2016] IEHC 434
8. The event which gave rise to these proceedings was the decision of the High Court in the case of Moore & Ors. v. DPP & Ors. which found that the provisions of s. 99(9) and (10) were unconstitutional. Judgment in that case was delivered by Moriarty J. on the 19th April, 2016. The judgment in that case dealt with a total of six individuals who complained of aspects of the operation of s. 99 of the Act of 2006 and challenged the constitutionality of the provisions having regard to an unfairness in its operation as it applied to them. In the course of the judgment, details were given in relation to the circumstances of the various individuals who came before the court. By way of illustration it would be helpful to refer to the circumstances of one of the individuals challenging the provisions of s. 99(9) and (10), namely the first named applicant, Mr. Moore. At para. 4 of his judgment Moriarty J. set out the position as follows:
“In this instance, the applicant was convicted of a minor District Court offence, and the presiding judge was proceeding to sentence when it became apparent that a prior suspended sentence imposed by the Circuit Criminal Court was still operative. Accordingly the matter was remanded to the Dublin Circuit Criminal Court for determination of whether or not the suspended sentence should be activated. In what was to become a constant argument in similar cases, it was submitted on behalf of Mr. Moore that he wished to appeal the conviction in the District Court and have an outcome pronounced prior to any hearing in the Dublin Circuit Criminal Court. It was pointed out that this now appeared to be precluded in view of the amended wording of s. 99, and that if the Circuit Court were to activate the suspended sentence, he would serve considerable time in prison prior to his appeal hearing. If the appeal against the District Court conviction ultimately proved successful, it was argued that the basis for activation that he was unfairly being prevented from challenging would be incorrect, and his period in custody unjustified. It was also argued that under R. 28(a) of the Rules of the District Court the applicant was accordingly precluded from appealing his latter conviction until the issue of activation of his suspended sentence had been finalised, and this it was argued was unfair and unconstitutional.”
9. On that basis he was granted leave to apply for judicial review seeking a number of declarations including a declaration of unconstitutionality. Having reviewed the arguments, and considered a number of authorities, the learned High Court Judge concluded that the provisions of s. 99(9) and (10) were unconstitutional. In the seminal work on Sentencing Law and Practice (3rd Ed., Round Hall), the learned author described the difficulties with s. 99(9) and (10) in the following way at para. 22 – 32:
“The major problem with subss. (9) and (10) of s. 99 which eventually led to their being declared unconstitutional in Moore v. DPP was that the later court had to remand the defendant to the first court before imposing sentence; to do otherwise would be to act without jurisdiction. This gave rise to particular difficulties in the District Court. A person convicted in that court may appeal to the Circuit Court against conviction, sentence or both. Such an appeal is by way of rehearing, and entering into a recognisance to pursue an appeal operates as a stay on the District Court order. But an appeal may not be taken until sentence has been imposed. A person who is convicted of an offence in the District Court while subject to a suspended sentence imposed by, say, the Circuit Court had to be remanded to the latter court, in accordance with s. 99(9) for a determination on the revocation of the suspended sentence. If that sentence was revoked in whole or in part and the person was then immediately committed to custody but later succeeded in having the District Court conviction quashed on appeal, he or she might legitimately complain of having been wrongfully detained. The person had not, after all, been convicted of a further offence during the operational period of the suspended sentence. This led the High Court in Moore to conclude that subss. (9) and (10) were unconstitutional.”
10. The passage referred to above from Sentencing Law and Practice highlighted the practical problem that arose in relation to the operation of the relevant sections. Obviously, there was a potential problem with the reactivation of a previously suspended sentence on the basis of a further conviction in circumstances where that subsequent conviction might be the subject of an appeal which could result in the latter conviction being quashed. In those circumstances clearly the basis of the revocation of the earlier suspended sentence would be unjustified.
Events following Moore v. DPP
11. Subsequent to the decision in Moore the appellant made an application for leave to seek, inter alia , an order quashing the order of the Circuit Court on the 18th May, 2015 pursuant to s. 99(10) of the 2006 Act in respect of Bill No. 298/2012; an order of certiorari quashing the committal warrant issued pursuant to the said order and finally a declaration that the appellant is being held in unlawful detention by the Governor of Mountjoy Prison on foot of the committal warrant. It should be noted that while there was a challenge to the order providing for the five and a half year sentence in respect of Bill No. 99/2015, that was expressly not pursued at the hearing of this appeal.
Judgment of the High Court
12. The key question to be decided by the learned High Court Judge was the extent to which the declaration of invalidity of s. 99(9) and (10) could be applied retrospectively to persons who had the benefit of a suspended sentence which was subsequently revoked, by reason of further offending, in accordance with the provisions of s. 99(9) and (10).
13. The learned trial judge had regard to a number of well known authorities in which the question of the effect of a finding of invalidity could be applied retrospectively such as A. v. Governor of Arbour Hill Prison [2006] IESC 45 and Director of Public Prosecutions v. Cunningham [2012] IECCA 64. She also considered a number of cases in which the same question had to be decided following the finding of invalidity of the relevant provisions in Moore. Those cases include: Clarke v. Governor of Mountjoy Prison [2016] IEHC 278; Clarke v. Governor of Mountjoy Prison [2016] IECA 244; Foley v. Governor of Portlaoise Prison [2016] IEHC 334; Foley v. Governor of Portlaoise Prison [2016] IECA 411; Ryan v. Director of Public Prosecutions [2016] IEHC 380 and Larkin v. Governor of Mountjoy Prison [2016] IEHC 680.
14. Particular emphasis was placed on the case of Clarke referred to above and I will return to the judgments in that case later.
15. The learned trial judge relied on the authorities referred to above. She noted that there had been no challenge brought by the appellant in this case in relation to the constitutionality of the provisions of s. 99(9) and (10) and further that there was no objection raised on his behalf to the order made on the 22nd April, 2015 remanding him in custody for the purpose of a sentence hearing for, inter alia , the potential activation of the suspended sentence. At para. 57 of her judgment she concluded as follows:
“The net issue for this Court is whether the applicant is precluded from obtaining the benefit of the declaration of unconstitutionality in Moore , as contended for by the respondent. Having considered the merits of the applicant’s case, I am satisfied that the decided authorities particular to the consequences of the declaration of unconstitutionality made in Moore , as referred to in this judgment, support the respondents’ argument that the applicant’s application for judicial review should be rejected. Furthermore, whilst the applicant stresses that he is not looking for the Moore declaration to have any retrospective effect, on any reasonable interpretation of the substance of his case, as pleaded, the reality of the matter is what he is seeking is that the declaration of unconstitutionality should have a blanket effect. That being the case, the relevant jurisprudence both pre- and post- Moore is clearly against the applicant’s claim, having regard to the particular circumstances of his case. I am satisfied that the circumstances where prisoners can obtain relief in cases of this kind are limited. There must be, in the words of Birmingham J. in Clarke ,:
‘a default of fundamental requirements such that the detention could be said to be wanting in due process of law or that his detention arises on a departure from fundamental rules of natural justice’.”
In those circumstances, the learned trial judge considered that she was bound by the Court of Appeal decision in Clarke and therefore refused to grant the relief sought in the proceedings.
Discussion
16. In making the application for judicial review in this case, the appellant sought to distinguish the facts of his case from those apparent in A. v. Governor of Arbour Hill Prison referred to above and in particular placed reliance on the decision in the case of DPP v. Cunningham . Reliance was placed on Cunningham to argue that the principles ascertainable from the decision in A. do not apply where finality has not been reached in criminal proceedings. It was pointed out that there has not been finality in this case given that the appellant had lodged an appeal to the Court of Appeal and until such time as his appeal has been disposed of, the proceedings have not reached finality. On that basis it was contended that the appellant was entitled to rely in these proceedings on the findings made in Moore . As pointed out previously, it is accepted on behalf of the appellant that the sentence of five and a half years in respect of the later offence is not now the subject of any relief in these proceedings albeit that there is a live appeal in respect of that sentence.
17. The starting point for a consideration of the issues arising in this case therefore is clearly the decision of this Court in the case of A. v. Governor of Arbour Hill Prison . In that case Mr. A. had been convicted in the Circuit Criminal Court on a plea of guilty of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law (Amendment) Act 1935 and was sentenced to three years imprisonment. He sought release from custody pursuant to the provisions of Article 40.4.1° of the Constitution. He contended that his detention was unlawful on the basis that the Supreme Court on the 23rd May, 2006 in the case of C.C. v. Ireland [2006] 4 IR 1 found that s. 1(1) of the Criminal Law (Amendment) Act 1935 was inconsistent with the Constitution. The Supreme Court held that there was neither an express nor an implied principle of retrospective application of unconstitutionality in the Constitution. It was not a principle of constitutional law that cases which have been finally decided and determined on foot of a statute which was later found to be unconstitutional must invariably be set aside as null and of no effect. Once finality had been reached and the parties had in each case exhausted their actual or potential remedies, the judicial decision must be deemed valid and lawful. In the course of his judgment in that case, Murray C.J. commented at para. 36 as follows:
“Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position .” (emphasis added)
He concluded his judgment by saying (para. 114 et seq.):
“It follows from the principles and considerations set out in the cases, which I have cited, that final decisions in judicial proceedings, civil or criminal, which have been decided on foot of an Act of the Oireachtas which has been relied upon by parties because of its status as a law considered or presumed to be constitutional, should not be set aside by reason solely of a subsequent decision declaring the Act constitutionally invalid.
115. The parties have been before the courts. They have, in accordance with due process, had their opportunity to rely on the law and the Constitution and the matter has been decided. Once finality has been reached and the parties have in the context of each case exhausted their actual or potential remedies the judicial decision must be deemed valid and lawful.
116. Save in exceptional circumstances, any other approach would render the Constitution dysfunctional and ignore that it contains a complete set of rules and principles designed to ensure ‘an ordered society under the rule of law’ in the words of O’Flaherty J.”
He added at para. 117 the following comment:
“I am quite satisfied that the Constitution never intended to visit on that ordered society the potential unravelling of judicial decisions over many decades when a particular Act is found unconstitutional solely on the consideration of the ab initio principle to the exclusion of all others.”
18. Counsel on behalf of the appellant has made the observation that the reference in para. 116 of the judgment of Murray C.J. in the case of A. to “exceptional circumstances” appears to have had an influence on McDermott J. in the course of his judgment in Clarke which led him into error. It was pointed out that the reference to “exceptional circumstances” in the judgment of Murray C.J. is to circumstances when the “finality principle” will not be a bar to relief. In other words, it is only in exceptional circumstances that the finality principle will not apply. Therefore, the general proposition is that once a party to the proceedings has exhausted their remedies and the court decision is final then a subsequent declaration of invalidity or inconsistency with the Constitution will not avail that party. Insofar as this submission is concerned, I am satisfied that counsel for the appellant is correct in saying that the reference to “exceptional circumstances” by Murray C.J. is to circumstances when the “finality principle” will not be a bar to relief.
19. The second decision of importance in this regard is the case of The People (DPP) v. Cunningham . In that case Mr. Cunningham had been convicted on a number of counts of money laundering. The relevant evidence had been found during a search of his dwelling house on foot of a warrant pursuant to s. 29 of the Offences Against the State Act 1939 as amended (the Act of 1939). Following his conviction, Mr. Cunningham appealed against his conviction. His appeal was extant at the time that the Supreme Court in the case of Damache v. Director of Public Prosecutions [2012] 2 I.R. 266 was decided in which it was concluded that the procedure provided for in s. 29 of the Act of 1939, as amended, was repugnant to the Constitution. It was held in that case by the Court of Criminal Appeal that where there was a right of appeal provided by law, finality could not be said to attach to the decision of the court that was subject to that appeal unless and until the appeal had been concluded or no appeal had been taken within the time limited for doing so. It was also held that as the appeal remained extant and had not reached finality, Mr. Cunningham was entitled to rely upon a declaration of inconsistency made subsequent to his conviction. Further it was held that he was not debarred from relying on the declaration of inconsistency made subsequent to his conviction by reason of the fact that he did not himself institute proceedings seeking the said declaration. It was further held that a provision that had been declared unconstitutional was void ab initio from the date of its enactment, though any such invalidity crystallised only with a formal declaration of invalidity by which the law in question was judicially adjudged to be invalid or annulled. Such a finding must also apply to third parties outside the litigation seeking to impugn the relevant provision. That a finding of unconstitutionality applied only to persons who commenced litigation or their privies was inconsistent with existing jurisprudence and established practice. Finally, it was held that an applicant might be debarred by his own conduct from taking advantage of a finding of unconstitutionality in the event that he had acquiesced or benefited from or elected to proceed with a state of affairs that either directly or indirectly acknowledged the validity of the particular course of conduct or law that was subsequently put at issue. In coming to its conclusion in that case the Court of Criminal Appeal applied the decision of the Supreme Court in the case of A. v. Governor of Arbour Hill Prison.
20. The decisions in A. v. Governor of Arbour Hill Prison and The People (DPP) v. Cunningham are of significant importance in any consideration of the effect of a finding of invalidity of a statutory provision relevant to a conviction of a criminal offence.
Clarke v. The Governor of Mountjoy Prison
21. The decision in this case formed an important part of the consideration of the learned trial judge in this case and thus must be considered in some detail. It concerned an application for an inquiry pursuant to Article 40.4.2° of the Constitution of Ireland. Mr. Clarke pleaded guilty to a number of counts on three Bills of indictment. The indictments concerned a number of counts including counts of robbery and the possession of firearms amongst other things. On the first Bill, a sentence of five years imprisonment in respect of robbery and possession of a firearm was imposed. On the second Bill a sentence of eight years was imposed with the final seven years suspended. In respect of a further count on that indictment relating to possession of a firearm, Mr. Clarke was sentenced to seven years imprisonment all of which was suspended. The sentences on that Bill were said to be consecutive to that imposed on the first Bill. Finally, Mr. Clarke pleaded guilty to a further count of robbery for which a term of five years imprisonment with the final four years suspended was imposed. That sentence was also to be served consecutively to that imposed on the first Bill. Terms and conditions were imposed on Mr. Clarke in relation to the suspension of the relevant sentences. Having served the custodial element of the sentences, Mr. Clarke was released from custody in October 2013 but was, of course, subject to the conditions imposed in relation to the suspended elements of the sentences concerned. Subsequently during the period of suspension of the sentences previously imposed, and contrary to the conditions entered into as a condition of the suspension of those sentences, Mr. Clarke came before the District Court on the 9th September, 2014. He pleaded guilty to charges relating to incidents involving cars on the 10th February and the 2nd April, 2014 including driving without insurance or a licence, failing to produce documents when required and driving a vehicle with a bald tyre. He was remanded in custody by the District Court to Dublin Circuit Court on the 10th September, 2014 under the provisions of s. 99(9) and (10) for a determination as to whether the suspended portions of the sentences should be revoked. Ultimately, the application to revoke the suspended terms of the sentences concerned were determined by Judge McCartan in the Circuit Court on the 4th November, 2014. He reactivated all the sentences that had been previously suspended, directing that they should run concurrently from the 30th April, 2014. Mr. Clarke was then remanded back to the District Court on the 5th November, 2014 for the imposition of sentence in respect of the road traffic offences. A five month sentence of imprisonment, itself suspended, and a thirty year driving ban were imposed in respect of driving without insurance and the other charges were marked as having been taken into consideration.
22. A notice of appeal in respect of the sentences imposed on the 4th November, 2014 was lodged with the Court of Appeal on the 21st November, 2014. It was noted by the learned trial judge in Clarke that although an appeal was lodged with the Court of Criminal Appeal no grounds of appeal had been filed at the time of the hearing of the Article 40.4.2° application and it was accepted that the position was that the jurisdiction of the Court of Criminal Appeal had been invoked and accordingly that the appeal must be regarded as pending.
23. Given the judgment in Moore , Mr. Clarke sought to rely on the retrospective application of that decision to the facts of his case and thus he contended that he was unlawfully detained. Accordingly, he brought an application pursuant to the provisions of Article 40.4.2° as mentioned above.
24. The learned trial judge (McDermott J.) considered the jurisprudence to be found in cases such as A. v. Governor of Arbour Hill Prison and The People (Director of Public Prosecutions) v. Cunningham . He also referred to the cases of The State (Byrne) v. Frawley [1978] I.R. 326 and de Burca v. Attorney General [1976] I.R. 38 amongst others. Having reviewed the relevant authorities, he stated at para. 41 of the judgment as follows:
“The applicant lays particular emphasis on the fact that the criminal proceedings in his case have not been finalised or concluded in the Court of Appeal since his appeal against sentence under s. 99(12) is still pending. I am satisfied that this is so and that the applicant is not precluded from raising a point concerning the invalidity of the statute under which he was returned to the Circuit Court under s. 99(9) and (10). He is entitled to advance all such arguments and evidence to establish a claim that he is entitled to benefit from the declaration. I am satisfied that this conclusion is also in accordance with the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Cunningham [2012] IECCA 65. However, I am not satisfied, as is made clear in the above authorities, that the finality argument must always prevail against all others in determining the retroactivity of such a declaration, or indeed must prevail in this application: the behaviour of the applicant and the other circumstances of the case must also be considered.”
25. A number of other authorities were considered by the learned trial judge, namely The Director of Public Prosecutions v. O’Connor [2014] IECCA 4, The People (Director of Public Prosecutions) v. Bolger [2013] IECCA 6 and The People (Director of Public Prosecutions) v. Hughes [2013] 2 I.R. 619 all of which concerned the effect of the finding in Damache . Having reviewed those authorities, he concluded as follows at para. 51:
“Therefore, it has been clear by the Court of Criminal Appeal in a number of cases that a finding of unconstitutionality may be relied upon in appeals to a pending when the issue governed by the invalidity was raised in the trial court. The reality of the prejudicial effect of the reliance upon material obtained on foot of the s. 29 warrants in procuring a plea of guilty or as evidence in the course of trial was also considered. If the substantive fairness of the trial process was not demonstrably affected by reliance upon the material obtained or the appellant had declined to challenge the admissibility of such evidence, they were not permitted to rely on the declaration of invalidity retrospectively. It did not inexorably follow that a court must entertain an application to set aside a verdict on the basis of the inadmissibility of evidence obtained on foot of warrant of the type impugned in Damache . It considered all circumstances relevant to the application such as the acquiescence, behaviour or strategy adopted by the accused during the course of the trial and in particular, whether the matter had been raised as an issue during the trial. Though the court was invited to permit reliance upon the finding of invalidity, it did not do so in the cases of O’Connor , Hughes and Bolger . It was careful to apply general principles relating to acquiescence and conduct. It also applied the principles set out in The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] 4 IR 329 which enabled the court to permit a ground to be argued that was not previously advanced at trial: such grounds would be permitted only in circumstances where the court was of the view that, due to a fundamental injustice or some substantial error or oversight a fundamental injustice may have occurred. In that regard an explanation would have to be furnished as to why it was not so argued. In considering the retrospective application of the declaration in this case all of these factors are relevant.
52. I do not consider that there is any evidence to support a submission that the applicant in this case suffered any fundamental injustice or that there is any basis upon which one might apprehend that he has suffered any unfairness or unfair prejudice in the re-entry or hearing concerning the revocation of the suspension of the sentence.”
The learned trial judge then considered the appellant’s conduct and circumstances in that case and concluded at para. 58 as follow:
“I am satisfied that the procedures under s. 99(9) and (10) were relied upon by the State in good faith in that they were regarded as having the force of law at the time. These procedures were not and could not have been successfully impugned by the applicant because he could not have demonstrated any prejudice or fundamental injustice or inequality of treatment in the manner in which they were applied to his case. I am satisfied that where no demonstrable injustice of a fundamental nature has occurred in the applicant’s case he should not be regarded as a person in respect of whom release must be ordered. I do not consider that there are any circumstances, exceptional or otherwise, in this case which required that the declaration made in the Moore case should have a retrospective effect, much less the blanket effect suggested.”
He concluded at para. 62 as follows:
“The retrospective application of the declaration of invalidity is not warranted in this case. The applicant pleaded guilty to the original offences charged on indictment. He was lawfully sentenced. He agreed the conditions of the suspended sentence. He breached those conditions. He admits the breaches. He was returned to court. He failed to object to the procedure adopted in doing so. He pleaded guilty to the offences in the District Court as a result of which he was returned to the trial court. He evinced no intention then or now of appealing those convictions to the Circuit Court. He could not have succeeded in a challenge to s. 99(9) and (10) on the same basis as the Moore applicants. His application is without merit and is based entirely on the happenstance that the law under which he was returned to the trial court was declared invalid seventeen months after his suspended sentence was revoked. In the meantime, he has appealed to the Court of Criminal Appeal: his appeal against the revocation is still pending but he has failed to lodge grounds or take steps directed by that court in order to advance his appeal.”
In the circumstances, the learned trial judge in Clarke concluded that Mr. Clarke was detained in accordance with law.
26. The decision of the High Court in that case was then appealed to the Court of Appeal. Judgment was delivered by that Court on the 28th July, 2016 upholding the decision of the High Court and dismissing the appeal.
The judgment of the Court of Appeal in Clarke
27. Delivering judgment, Birmingham J. examined the judgment of the learned High Court judge. He referred at para. 20 and made the following observations:
“Much time has been spent on both sides of the Court addressing the significance of A. v. Governor of Arbour Hill Prison [2006] 4 IR 88, perhaps, more time than was strictly necessary as McDermott J. was clear that an appeal under s. 99(12) had been lodged and was still pending and that as a result the applicant was not precluded from raising a point concerning the invalidity of the statute under which he was returned to the Circuit Court under s. 99(9) and (10).
21. In effect, the judge in the High Court was satisfied that Mr. Clarke had won what might be described as the finality argument, but as he made clear at para. 41 of his judgment, he was not satisfied that the finality argument must always prevail against all others in determining the retroactivity of such a declaration or indeed that it must prevail in this application. The behaviour of the applicant and the other circumstances of the case also had to be considered. The applicant was in principle entitled to the benefit of the Moore decision, but the Court also had to inquire into, in the words of Henchy J. in The State (Byrne) v Frawley [1978] I.R. 326, whether by reason of other facts and circumstances the applicant had lost the competence to lay claim to the right guaranteed by the Constitution in the circumstances of the case.”
The Court of Appeal then proceeded to consider the transcripts of the hearing before the Circuit Court and the ruling of the Circuit Court judge in the course of sentencing. Having done so the judgment continued at para. 30:
“It seems to me that consideration of this issue by the Circuit Court expanded beyond the confines of subs. (10) and that the Court was having regard to all of the information that was emerging on foot of inquiries that it set in motion. I acknowledge that the Court did not indicate whether in doing so it was exercising its wider function under subs. (17) but it seems to me that the reading of the two transcripts would suggest that is what was happening. In forming that view I do not lose sight of the fact that the reference in subs. (10) to ‘unjust in all the circumstances of the case’ makes clear that the Court when dealing with a matter under subs. (10) is not confined to a consideration of the facts of the triggering offence.”
The Court continued at para. 31:
“However, that notwithstanding, it seems to me that what happened here was that the Court decided to take a broader view as it was entitled to do under subs. (17). The relevance of this of course, is that it is not a precondition to the exercise of a subs. (17) jurisdiction that the person be brought before the court pursuant to subs. (9). Insofar as subs. (17) is a broad and general jurisdiction it seems to me that the route by which the appellant was brought before the Circuit Court is not material and that accordingly The State (Attorney General) v. Fawsitt and DPP (Ivers) v. Murphy line of authority is applicable. In these circumstances I would take the view that the appellant is not in unlawful custody and so would dismiss the appeal.
32. If I am wrong about that I would in any event follow the reasoning of McDermott J. in the High Court. I accept, as he did, that a notice of appeal was lodged, which means that Mr. Clarke’s position is to be distinguished from that of A. v. Governor of Arbour Hill Prison. However, like McDermott J., I do not believe that the fact that because an appeal was lodged and accordingly that matters had not been finalised before judgment in Moore that it follows automatically that Mr. Clarke is entitled to be released. The position is that Mr. Clarke committed offences of the utmost gravity. He persuaded the Circuit Court to deal with him in a very lenient fashion indeed and then very shortly after his release, having served the custodial element of his sentence, he breached the conditions of his suspended sentences in a number of respects. There was a full and fair hearing in the Circuit Court over two days which addressed the issue of whether the sentence should be activated. The judge in the Circuit Court decided to activate the sentence. Mr. Clarke has a right of appeal from that decision and has invoked that right by lodging a notice of appeal. On the hearing of that appeal Mr. Clarke can argue that the activation of the sentences in full was an excessive and disproportionate response.”
In the circumstances, the Court of Appeal concluded that the reasoning of the High Court was compelling and that the appeal should be dismissed.
The People (DPP) v. Cunningham
28. It is relevant to point out that the precise issue that arose in Moore did not arise in the case of Mr. Clarke. Given his pleas of guilty in respect of both the original sentence and his plea of guilty in relation to the subsequent offence, he was not at risk of having a suspended sentence reactivated following his conviction on a subsequent offence in circumstances where the conviction on the subsequent offence might be overturned on appeal. Therefore, he was not someone who could have raised the precise point that arose in Moore in the course of the pending appeal. However, it has never been in dispute that at the time of the Moore decision, there was a pending appeal in respect of the sentences imposed on him. The position of the appellant in this case is the same. Thus, as is not in dispute, his appeals were not final and the question to be considered and decided by this Court is whether or not he is in some way debarred from relying on the decision in Moore as to the invalidity of the relevant sections of s. 99(9) and (10).
29. Both the High Court and the Court of Appeal in the Clarke case placed much reliance on the decision of this Court in The State (Byrne) v. Frawley [1978] I.R. 326. The facts of that case are set out in para. 39 of the judgment of the learned trial judge where it was stated as follows:
“The consequences for prior criminal trials of the Supreme Court’s declaration that elements of the Juries Act 1927 were inconsistent with the provisions of the constitution in the de Burca case were considered in The State (Byrne) v. Frawley (cited above). In Byrne’s case the prosecutor had been tried by a jury selected under the provisions of the Juries Act 1927 and was convicted and sentenced to seven years penal servitude. The conviction occurred in December 1975 and the decision in de Burca was delivered during the course of his trial. No point was taken in respect of this decision and the prosecutor proceeded with the jury which had been empanelled even though counsel for Byrne also acted in de Burca . Though he appealed to the Court of Criminal Appeal he did not raise the issue of the unconstitutional composition of the jury. Thereafter he applied for release under Article 40.4.2 on the grounds that he was not being detained in accordance with law thereby asserting the same rights which arose from the declaration of inconsistency made in de Burca . The Supreme Court rejected the application. Henchy J. (delivering the judgment of the court), stated that the applicant made an informed and deliberate decision to turn down the opportunity to challenge the composition of the jury during the course of his trial.”
The learned High Court judge then quoted from the judgment and in particular a passage at p. 350 of the judgment of Henchy J.:
“Because the prisoner freely and knowingly elected at his trial to accept the empanelled jury as competent to try him, I consider that he is now precluded by that election from claiming that the jury lacked constitutionality … The prisoner’s approbation of the jury was affirmed by his failure to question its validity when he formulated grounds of appeal against his conviction and sentence, and when his application for leave to appeal was argued in the Court of Criminal Appeal. It was not until some five months after his trial that he first put forward the complaint that the jury had been formed unconstitutionally. Such a volte face is impermissible. Having by his conduct led the Courts, the prosecution (who were acting for the public at large) and the prison authorities to proceed on the footing that he accepted without question the validity of the jury, the prisoner is not now entitled to assert the contrary. The constitutional right to a jury drawn from a representative pool existed for his benefit. Having knowingly elected not to claim that right, it would be contrary to the due administration of justice under the Constitution if he were to be allowed to raise that claim in the present proceedings when, by deliberate choice, it was left unasserted at the trial and subsequently in the Court of Criminal Appeal. What has been lost in the process of events is not the right guaranteed by the Constitution but the prisoner’s competence to lay claim to it in the circumstances of this case.
In basing this judgment on the special circumstances of this case, I do not wish to imply that the prisoner would be entitled to succeed in his claim if those particular circumstances did not exist.”
Notwithstanding the clear position of this Court as set out in the judgment of Murray C.J. in A. v. Governor of Arbour Hill Prison to which reference has been made previously, the learned High Court judge in Clarke concluded that he was not satisfied that the finality argument must always prevail against all others in determining the retroactivity of a declaration of unconstitutionality. He was of the view that it was necessary for the behaviour of the applicant before the Court and the other circumstances of the case to be considered. That approach was endorsed by the Court of Appeal.
30. The decision of this Court in the case of A. v. Governor of Arbour Hill Prison made it clear that a finding that an act or part thereof is constitutionally invalid will not result in final decisions made in judicial proceedings being set aside solely by reason of the decision declaring the legislation concerned to be constitutionally invalid. As the Court said:
“Once finality had been reached and the parties have in the context of each case exhausted their actual or potential remedies the judicial decision must be deemed valid and lawful.”
The logic of that approach is, to my mind, unarguable. Clearly, however a different approach can be discerned where finality has not been reached.
31. A singular feature of the discussion in the decision in A . is the effect of finality of proceedings notwithstanding a subsequent finding of unconstitutionality of legislation. Hardiman J. in the course of his judgment in that case, at para. 236 summarised the consequences of a finding of unconstitutionality by reference to a number of cases dealing with this issue and observed, inter alia , at sub-para. (3):
“(3) In applying the considerations mentioned in the preceding paragraph, ‘… it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case and such like matters may require that force and effect be given in certain cases to transactions carried out under the void statute’.
(4) Such force and effect may have to be given ‘… because of a person’s conduct or because of the irreversible course events have taken, or for any one of a number of other reasons…’; because ‘[t]he irreversible progressions and by-products of time, the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality – even irreversibility – that tends to attach to what is becoming inveterate or has been widely accepted and acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional law, or otherwise void, into an acceptable part of the corpus juris’ ; because ‘[q]uestions of rights claimed to have become vested, of status, of prior determinations deemed to have finality, and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination’.”
Hardiman J. went on to consider the facts of the particular case and concluded at p. 189 as follows:
“That passage puts part of the applicant’s difficulties squarely. He has not been able to allege any departure from natural justice in the way he has been treated. He acknowledges his guilt and that his claimed release would be a ‘windfall’. On the other hand, it must be manifest that his release would be a great injustice to others. But it is not necessary to decide the case on that basis. The applicant is here attempting to do what no one has done before: to set up a declaration based on the right of a third party in order to invalidate a past and closed transaction , his criminal trial. This cannot be done because, on the long established and unchallenged jurisprudence the trial and sentence are things which require to be given continued force and effect. The applicant’s release would require a departure from that line of authority which I am satisfied there is no warrant for doing. I am satisfied, in other words, that the applicant is now and always has been detained in accordance with law.” (emphasis added)
32. That brings me to a consideration of the decision in The People (DPP) v. Cunningham to which reference has been made previously. In that case, the Court of Criminal Appeal was dealing with an appeal from the appellant’s conviction on ten counts of money laundering. A significant sum of money was found during a search of the appellant’s dwelling house. A search warrant had been issued pursuant to the provisions of s. 29 of the Offences Against the State Act 1939 as inserted by s. 5 of the Criminal Law Act 1976. It was agreed between the parties on the hearing of the appeal that the validity of the warrant would be dispositive of the appeal against the conviction on count ten of the indictment. Count ten concerned the finding of the sum of Sterling £2,400,000 in the appellant’s dwelling house. Before the appeal came on for hearing in the Court of Criminal Appeal, Denham C.J. gave judgment for the Supreme Court in the case of Damache v. The DPP, Ireland and the Attorney General . In that case, a declaration was granted to the effect that s. 29(1) of the Offences Against the State Act 1939 as amended was repugnant to the Constitution. The appellant had appealed his conviction some three years before the Supreme Court judgment in Damache and one of the grounds of appeal made reference to the status of the warrant. Two points were made, namely that the warrant was defective because it did not identify the appellant’s residence as the place to be searched and further because it was “merely a ‘colourable device’ to avoid the necessity of making an application for a warrant to a judge”. Subsequent to the decision in the Damache case the appellant in Cunningham brought an application for bail on the basis of the Damache case and lodged supplemental submissions relying heavily on that case. In addition, he sought liberty to amend the original grounds of appeal to rely expressly on the fact that s. 29 of the Offences Against the State Act was declared to be repugnant to the Constitution as a result of which evidence procured on foot of the warrant was unconstitutionally obtained and inadmissible in law. Leave was granted to amend the grounds of appeal as sought.
33. It appears that the question of the constitutionality of s. 29 was referred to in the appellant’s first set of written submissions before the decision in Damache was handed down.
34. In the course of his judgment in that case, Hardiman J. considered the question of “finality”. The State had argued in that case that the decision in respect of the appellant was final, a verdict having been given by the jury. This argument was rejected by the Court of Criminal Appeal when Hardiman J. said as follows at p. 20:
“The decision of the Circuit Court in this case is plainly still subject to review by this Court. It is accordingly not yet ‘final’.
. . . In Dalton v. Minister for Finance [1989] ILRM 519 the Supreme Court per Finlay C.J. stated that ‘It is of the essence of litigation that subject to a proper right of appeal , as provided by law, the judgment of a court is a final judgment’. (Emphasis supplied).
This, of course, is entirely consistent with the dictum of Murray C.J. in A. v. The Governor of Arbour Hill Prison , quoted above, that finality may be achieved on appeal or otherwise.”
The Courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and the Court of Criminal Appeal, both primarily appellate courts. The finality attaching to the judgments of other courts are, as Chief Justice Finlay expressed it ‘subject to a proper right of appeal as provided by law’. It therefore appears that where there is (as in this case) a right of appeal provided by law, finality cannot be said to attach to the decision of a court which is subject to that right of appeal unless and until the appeal has concluded or no appeal has been taken within the time limited for doing so.”
35. Accordingly, the Court of Criminal Appeal rejected the submission of the State that the criminal case against the appellant was finally concluded by the verdict of the jury. It has to be said that in this case, the learned trial judge acknowledged the fact that there was an appeal extant, as did the High Court and the Court of Appeal in Clarke , and that it had not reached finality.
36. The Court in Cunningham went on to consider the effect of the finding on constitutionality on third parties such as the appellant in that case. An argument was made to the effect that the appellant should not be allowed to raise the issue given that he had not commenced proceedings challenging the constitutionality of s. 29 either before or even after his conviction and therefore was debarred from obtaining the benefit of the decision in Damache . Thus, the Court in that case considered whether the appellant was debarred from relying on Damache . The Court considered this issue under two headings, namely whether he was debarred from his own conduct from relying on Damache and secondly the question of retrospective or alternatively, the prospective application of the finding of unconstitutionality. In the context of the question of debarring by his own conduct the Court considered a number of authorities, namely Corrigan v. Irish Land Commission [1977] I.R. 317, The State (Byrne) v. Frawley [1978] I.R. 326 and A. v. Governor of Arbour Hill Prison [2006] 4 IR 88. As Hardiman J. pointed out:
“. . . these were all cases where the applicant had either acquiesced, in or benefited from, or elected to proceed with, a state of affairs which either directly or indirectly acknowledged the validity of the particular course of conduct or law which was subsequently put at issue.”
37. As none of those factors were present in the case of the appellant in the Cunningham case, it was concluded that he was not debarred by his conduct from taking advantage of the finding of unconstitutionality.
38. The second issue considered by the Court in Cunningham was the effect of a declaration of unconstitutionality. The Court reviewed a number of authorities in that regard including Murphy v. The Attorney General [1982] I.R. 241, McDonnell v. Ireland [1998] 1 I.R. 134, and stated:
“Yet, once that invalidity does crystallise with a declaration of unconstitutionality, it is plain so far as the State, society and the citizenry is concerned that the law in question is no longer operative: see in this regard the comments of O’Flaherty J. in McDonnell ([1998] 1 I.R. 134, 143). It is inherent in the principle of unconstitutionality contained in Article 15.4.2 that any such declaration has erga omnes effect. In other words, such a declaration is not merely confined to a specific judicial ruling of unconstitutionality inter partes which binds third parties simply and only by reason of the doctrine of precedent and the fact that the earlier ruling will (in all probability) be applied in future similar cases.”
Reference was also made to the decision in the case of Muckley v. Ireland [1985] I.R. 472. The Court concluded at p. 38 of the judgment:
“The key point here is that all of this – i.e., either the enactment of s. 21 of the Act of 1980 or the decision in Muckley itself – would have been quite unnecessary had the position been as Mr. O’Connell urged. It follows, therefore, that, in principle, at least the accused can claim the benefit of Damache unless the criminal proceedings have been finalised.”
39. Muckley was a case which resulted from the decision of the Oireachtas to enact legislation to deal with the outcome of the Murphy v. Ireland tax case in relation to the income of married couples.
40. Thus it is clear from the decision of the Court of Criminal Appeal in Cunningham that a third party can benefit from the finding of unconstitutionality notwithstanding that they themselves have not sought to challenge the constitutionality of the legislation at issue themselves in their proceedings provided that he or she is not estopped from relying on the finding of invalidity by factors such as those identified in the cases of Corrigan , Byrne and A. referred to above and providing of course, that the proceedings have not been finalised. Indeed, the Court of Criminal Appeal emphasised that in saying that:
“. . . absent a knowing and deliberate election – such as, in Byrne , deliberately electing to proceed with an unconstitutional jury – we do not think that the fact an accused can be faulted if he or she elects to proceed in the first instance by means of an appeal to this Court.”
In other words, the fact that someone has not themselves raised an issue as to the unconstitutionality of a particular piece of legislation is not, of itself, something that will amount to an election to proceed with the proceedings notwithstanding the possibility that the particular process or procedure provided for by the legislation is unconstitutional.
41. The Court of Criminal Appeal in the case of Cunningham concluded as follows:
“For the reasons set out above, we are satisfied that the appellant is entitled to invoke the judgment of the Supreme Court to the effect that s.29(1) of the Offences Against the State Act, 1939 is inconsistent with the Constitution. This is primarily because his appeal to this Court was extant at the time of the delivery of that judgment on the 23rd February, 2012. We are also of the view, again for the reasons set out above, that the appellant is not debarred from relying on the judgment in the Damache case by reason of the fact that he did not himself institute proceedings to have s.29(1) declared unconstitutional.”
42. The Court in that case went on to say that they would not comment on situations that would arise in other circumstances. One could indeed envisage a situation where a party who had pleaded guilty to an offence could have been precluded from relying on Damache in relation to the validity of a search warrant in circumstances where they had pleaded guilty to the offence or had accepted the validity of the search warrant in the course of trial. An example of such a situation arose in the case of DPP v. O’Connor [2014] IECCA 4, a decision of the Court of Criminal Appeal referred to by McDermott J. in Clarke . Mr. O’Connor sought to rely on the Damache decision in the course of an application to amend the Notice of Appeal to add, inter alia , a ground based the finding of unconstitutionality in Damache . He was permitted to add the ground and judgment was delivered refusing the appeal on the 23rd January, 2014. He then made an application for leave to appeal pursuant to s. 29 of the Courts of Justice Act 1924. McKechnie J. at para. 28 of the judgment said:
“…it will be recalled that when the prosecution indicated its intention of calling the relevant evidence with regard to the validity of the s.29 warrant, Counsel on his behalf immediately placed on the record that he was in a position “to concede that Sgt. Grant …applied for a search warrant in accordance with law,…” and that he adopted this course so as to release unnecessary witnesses to prove “the kind of formality” which would be involved. This can only be described as an express declaration of the appellant’s stated position on the issue at that time, a position which the Court does not criticise….It would, in this Court’s view, be entirely inconsistent with that stance to permit him now in effect to reverse his position in such a diametric way and to argue that his arrest and detention were unlawful. The situation as it had been had moved irreversibly by the end of the trial, and even though an extant appeal remains, the consequences therefrom cannot be undone.”
In the circumstances the application pursuant to s.29 was refused.
43. The position in this case is that the appellant sought judicial review by way of certiorari in order to quash the order of the Circuit Court whereby the appellant’s three year custodial sentences together with the two six month concurrent sentences were activated following the commission of the subsequent offence by the appellant. This is not a case where the appellant’s proceedings are finalised. His appeal remains outstanding. It is correct to say that he could not have relied on the point that arose in Moore given that he pleaded guilty to the first offences at issue and also to the triggering offence. Nevertheless, as the criminal proceedings have not been finalised as an appeal is extant, could he be debarred from relying on the finding of invalidity of s. 99(9) and (10) made in Moore in the course of his appeal?
44. The learned trial judge placed reliance on the decision of the High Court and the Court of Appeal in Clarke which, in turn, relied on, inter alia , the decision in The State (Byrne) v. Frawley [1978] I.R. 326 to argue that one could be debarred from relying on a finding of unconstitutionality by reason of conduct. I have set out above the circumstances of that case and undoubtedly, there are circumstances in which one might be debarred from relying on a finding of unconstitutionality, one such circumstance being the fact that the case concerned has reached finality It is important to bear in mind, that the proceedings in Byrne had in fact reached finality. Secondly, the issue that was subsequently relied on and which gave rise to the finding of invalidity related to the composition of the jury panel which flowed from the findings as to the inconsistency of provisions of the Juries Act 1927 with the provisions of the Constitution as found in de Burca . As was pointed out previously, the decision in de Burca was given in the course of the trial of Mr. Byrne. Mr. Byrne raised no issue in the course of his trial as to the validity of the jury and the panel from which it was selected to try him notwithstanding the decision in de Burca and following his conviction, he did appeal but did not raise any ground in relation to the composition of the jury. It was only after his unsuccessful appeal that he sought to raise an issue as to the composition of the jury by means of an application pursuant to Article 40.4.2°. In those circumstances there is nothing surprising in the fact that Mr. Byrne by his conduct was deprived of the right to argue the issue of unconstitutionality. The conduct at issue in cases such as Byrne is very much related to the tactical decisions made in the course of the trial and, in that case, in the subsequent appeal. Mr. Byrne had an opportunity to challenge the composition of his jury following on from the decision in de Burca and chose not to do so.
45. A similar question arose after the finding of unconstitutionality of s. 29 of the Offences Against the State Act in Damache as described in the case of O’Connor which is referred to above. A further example is the case of DPP v. Bolger [2013] IECCA 6. No formal objection was taken to the legality of the search warrant in that case. The Court of Criminal Appeal in it’s judgment (Denham C.J. ) observed:
“Once a strategy has been taken by an accused in a trial, then another approach may not be taken on appeal.”
46. Thus, I think that there can be no doubt that a defendant who adopts a particular course of conduct or strategy in the course of a criminal trial or could be said to have acquiesced in a particular course cannot adopt a different approach on appeal to make an argument that was not made in the court of trial or which is inconsistent with the approach taken in the court of trial to take advantage of a finding of unconstitutionality made during or after the trial but before an appeal has been concluded.
47. It is important to emphasise that the type of conduct which is at issue relates to the conduct or strategy adopted in the course of the proceedings. Thus, in the cases of O’Connor and Bolger, the conduct at issue was the approach taken in the course of the trial to the question of the validity of the search warrant. The parties in those cases were not allowed, following the Damache decision, to do a volte face in relation to the validity of the search warrants concerned. Such conduct will preclude a party from relying on a subsequent finding of unconstitutionality, albeit that finality has not been reached by reason of the fact that an appeal is outstanding.
48. I have already set out the conclusions of the learned trial judge in this case at para. 57 of her judgment. It seems to me that in looking at the conduct of the appellant and the issue of acquiescence, the emphasis was to a large extent on the conduct of the appellant by reference to “the merits” of the case. Accordingly, she concluded by following the decision in Clarke , that the appellant was not entitled to the relief sought.
49. I find it impossible to reconcile that conclusion of the learned trial judge with the decision of this Court in cases such as A. v. Governor of Arbour Hill Prison and indeed, the decision of this Court in The State (Byrne) v. Frawley . It is undoubtedly the case that on the 18th May, 2015 the Circuit Court dealt in good faith with the appellant in accordance with the law as then understood to be applicable. No one at that stage doubted the validity of s. 99(9) and (10). However, the decision in Moore changed that understanding of the law. There was a finding of invalidity.
50. None of the factors identified in cases such as A ., Byrne , Cunningham , Bolger or O’Connor are present on the facts of this case. The appellant did not adopt any strategy or engage in any conduct in the course of the proceedings which could debar him from relief. Further, he did not acquiesce in a process which he knew or understood to be unconstitutional. The process by which he was brought back before the Court to have the original suspended sentence revoked has been found to be unconstitutional. It is not so much a question of examining the merits of the particular facts and circumstances of the applicant and the offence concerned to decide whether or not he is entitled to rely on the finding of invalidity. Rather, it is a question of looking at the conduct of the proceedings and the decisions taken in the course of those proceedings to see if, by reason of any steps taken, the individual is debarred from relying on the finding of invalidity. There is no apparent reason why the appellant could not rely on that finding of invalidity. For those reasons, I am satisfied that there has been a want of due process of law in that the learned Circuit Court judge lacked jurisdiction to revoke the suspended sentence at issue by reason of the method by which the appellant was brought before the Court and that he is entitled to the relief sought.
51. For completeness I want to make reference briefly to the decision of this Court in the case of C v. Minister of Social Protection & Anor . [2018] IESC 57 in which judgment was delivered on the 28th November, 2018. As can be seen by the date of the delivery of judgment the decision in C was given subsequent to the hearing of the appeal by this Court in this case. That case arose in the context of a civil claim. I have had the opportunity of reading in draft form the judgment of Finlay Geoghegan J. in these proceedings in which she comes to a different conclusion on the outcome of this appeal. In the course of her judgment she has referred to the decision in C and cited in particular a number of passages from the judgment of O’Donnell J. (with which the majority of the Court in that case concurred). Having referred at para. 35 of his judgment to the decisions in A. v. Governor of Arbour Hill Prison and The State (Byrne) v. Frawley , he observed at para. 37 as follows:
“These cases are very important, since they establish beyond question that there is no automatic rule of consequential invalidity, and that certain matters, such as the finality of a conviction, or the failure to take a challenge, may preclude reliance on any invalidity subsequently established. However, both these cases occurred in the field of criminal law and involved attempts by a third party to claim the benefits of an invalidity established in other proceedings. Here, it is the appellant who has succeeded, and who claims for what he contends is consequential relief in the self- same proceedings, which are civil in nature. This, therefore raises slightly different issues.”
52. As can be seen from the discussion above, it follows that as has been said before, that there is no automatic rule of consequential invalidity and that as O’Donnell J. noted, certain matters may preclude reliance on any invalidity subsequently established. The extent to which someone may be debarred from relying on the finding of invalidity is something which will depend on the circumstances of any given case. In the earlier discussion in the course of this case, a number of circumstances have been referred to which will have a bearing on such a consideration. It is not necessary to refer to those authorities again. Suffice it to say, a finding of unconstitutionality in respect of legislation which has a bearing on criminal proceedings does not mean that steps taken in reliance on the legislation subsequently found to be unconstitutional will necessarily render the criminal proceedings invalid. A variety of factors will require to be considered as can be seen from the case law discussed above.
53. I indicated previously that I would return to the issue of s. 99(17) of the Act. The terms of s. 99(17) have been set out above. There is no doubt that the provisions of s. 99(17) have not been affected by the finding of unconstitutionality in Moore and that it is open to a court to consider the activation of a suspended sentence as provided for in that sub-section. It might be observed that the provisions of s. 99(9) and (10) were procedural in nature in that they set out the steps that had to be taken for a person to be brought before the court and the sequence in which sentencing was to be carried out following a subsequent “trigger” offence. Those procedures are no longer valid but that does not preclude a matter being brought back before the appropriate court for consideration of the question as to whether or not a suspended sentence should be revoked. There is no reason why that cannot be done in the event of a breach of the terms upon which the suspended sentence was imposed, if appropriate. In that regard, it is important to bear in mind the provisions of s. 99(13) and (14) which make provision for members of the Gardaí, prison governors, probation and welfare officers where there are reasonable grounds to believe that a person has contravened the condition(s) attached to a suspended sentence to apply to the Court to fix a date for the hearing of an application for an order revoking the suspension.
54. It should be noted that in this case, the challenge brought to the sentence of five and a half years imposed on the appellant in respect of the offence of dangerous driving causing death has not been pursued. Having said that, it should be borne in mind that that sentence was imposed in circumstances where the learned Circuit Court judge had regard to the earlier sentence and thus had regard to the principles of proportionality when reactivating the earlier sentences and imposing the sentence of five and a half years. In other words, the sentence of five and a half years was one which was arrived at having taken into account the fact that the suspended sentences of three years together with concurrent sentences of six months were being reactivated. In circumstances where this Court is of the view that it is appropriate to quash the orders of the Circuit Court revoking the suspended sentences, it may be considered appropriate to consider the question of remitting the issue of sentence in respect of those offences back to the Circuit Court for further consideration. It is a matter for the DPP to consider whether or not she wishes to do this having regard to the provisions of s. 99(17). The Court will hear the parties further on the question of remission.
Conclusion
55. By way of a brief conclusion:
(i) The decision of this Court in A. v. Governor of Arbour Hill Prison makes it clear that a finding that an act or part thereof is constitutionally invalid will not result in final decisions made in judicial proceedings being set aside by reason of the decision declaring the legislation concerned to be constitutionally invalid.
(ii) A defendant who adopts a particular course of conduct or strategy in the course of a criminal trial cannot adopt a different approach on appeal to make an argument that was not made in the court of trial (or which is inconsistent with the approach taken in the court of trial) to take advantage of a finding of unconstitutionality made during or after the trial but before an appeal has been concluded.
(iii) It is not a question of examining the merits of the particular facts and circumstances of an applicant and the offence concerned to decide whether or not an individual is entitled to rely on the finding of invalidity. Rather it is a question of looking at the conduct of the proceedings and the decisions taken in the course of those proceedings to see if by reason of any steps taken, the individual is debarred from relying on the finding of invalidity.
56. In all the circumstances, and for the reasons set out above, the Court will allow the appeal.
Judgment of Ms. Justice Finlay Geoghegan delivered on the 20th day of December, 2018.
1. This appeal is from a refusal of the High Court (Faherty J.) delivered on 16 June 2017 ([2017] IEHC 391) of an application primarily for an order of certiorari quashing an order made by Her Honour Judge Mary Ellen Ring (as she then was) in the Circuit Court on 18 May 2015 on Bill No. 298/2012 and other consequential reliefs. The order made by the Circuit Court on that day was:-
“THE COURT HEREBY ORDERS in accordance with Section 99(10) of the above-mentioned Act [Criminal Justice Act 2006] that the suspension of the sentence of this Court aforementioned be revoked and that the accused shall serve “the entire of the period of imprisonment originally imposed by this Court” being a sentence of three years on Count No 1 and six months on each of Counts 6 and 7 such sentences to run concurrently and to date from the 27th day of January 2015.”
2. Dunne J. has set out in full both the factual and legal context in which this appeal arises. I adopt same with gratitude. I only wish to record in summary the following facts, which are relevant to my conclusion on the legal issues.
3. The appellant pleaded guilty to charges on Bill No. 298/2012 on 18 February 2013. He was sentenced by Her Honour Judge Ring on 14 November 2013. The custodial sentences imposed were suspended in full for 3 years. Unfortunately, on 29 May 2014, the appellant was the driver of a vehicle which was involved in a serious accident, as a result of which one of his passengers died and another was seriously injured. The appellant was subsequently charged in respect of that incident on Bill No. 99/2015 on two counts, the second of which was a charge of dangerous driving causing death and serious bodily harm.
4. The appellant was himself injured in the accident. Following charge, he went into custody on those charges on 27 January 2015.
5. On 22 April 2015, the appellant was arraigned before the Circuit Court (His Honour Judge Nolan) and pleaded guilty to Count 2 on Bill No. 99/2015. He was remanded in custody to appear before Her Honour Judge Ring on 18 April 2015 for the purposes of sentencing on Count 2 on Bill No. 99/2015. A nolle prosequi was entered on Count 1.
6. The Circuit Court was informed of the prior suspended sentences and an order made remanding him to appear before Her Honour Judge Ring on the following day on Bill No. 298/2012. Whilst not referred to in the Circuit Court order, it is not in dispute that this order was made pursuant to s. 99(9) of the Criminal Justice Act 2006 (“the 2006 Act”).
7. On 23 April 2015, Judge Ring adjourned the s. 99 matter to 18 May 2015 for “s. 99 re-entry”. The accused was remanded in custody.
8. The Court has had access to the transcript of the hearing before Judge Ring on 18 May 2015 and her ruling on the sentencing on Bill No. 99/2015 and on the re-entry of Bill No. 298/2012. I will refer in greater detail to this below as it is relevant to the conclusions which I have reached.
9. In summary, the position of the appellant before Judge Ring on 18 May 2015 was as follows:-
(i) He was in custody on the charges on Bill No. 99/2015 since 27 January 2015. Having been arraigned and pleaded guilty to Count 2, he had been remanded in custody to appear for sentencing before Judge Ring on Count 2 on Bill No. 99/2015.
(ii) He had also been remanded in custody to appear before Judge Ring under s. 99(9) of the 2006 Act for the re-entry of Bill No. 298/2012.
10. On 18 May 2015, in relation to Bill No. 298/2012 the Circuit Judge purported to exercise a jurisdiction under s. 99(10) to revoke in full the suspension of the custodial sentences imposed in 2013. On Bill No. 99/2015, the Circuit Court imposed a custodial sentence for a period of five years and six months on Count 2 “…such sentence to date from the lawful termination of the re-activated sentence of three years on Count 1 and 6 months on each of Counts 6 and 7 this day imposed on Bill No. 298/2012”.
11. On 20 May 2015, the appellant, in person, lodged a notice of appeal against his sentence only. He refers to the sentence as being one of “eight and a half years”. It is clear that he was appealing against the sentences imposed in respect of Bills No. 298/2012 and 99/2015. The grounds of appeal are simply “I feel this sentence was to [sic] harsh as it was an accident and other sentences for the same charge have been a lot more lenient”.
12. On 19 April 2016, in Moore & Ors v. D.P.P. [2016] IEHC 244, Moriarty J. declared sub-ss. 99(9) and (10) of the 2006 Act to be unconstitutional.
13. Leave was granted in these judicial review proceedings on 9 May 2016.
14. The essential and simple point made on behalf of the appellant in the High Court and this Court is that the effect of the declaration of unconstitutionality of subss. 99(9) and (10) is that they are void ab initio and in consequence, Her Honour Judge Ring did not have the statutory power which she purported to exercise on 18 May 2015 to revoke the suspension of the custodial sentences imposed in respect of Bill No. 298/2012.
15. The High Court rejected the application for judicial review in reliance in particular upon the judgments of the High Court and Court of Appeal in Clarke v. Governor of Mountjoy Prison [2016] IEHC 278 and [2016] IECA 244 and in Foley v. Governor of Portlaoise Prison [2016] IEHC 334 and [2016] IECA 411 and upon other judgments of the High Court on applications affected by the declaration of unconstitutionality in Moore .
The Law
16. Dunne J. has set out with great clarity and detail the law in relation to the consequences of declarations of invalidity of statutes pursuant to Article 15 of the Constitution and in particular the consequences of such declarations for criminal proceedings.
17. The consequences for acts which are carried out pursuant to legislation declared unconstitutional have been considered most recently in judgments delivered by the Supreme Court in C. v. Minister for Social Protection [2018] IESC 57 on 28 November 2018, albeit in the context of a civil claim. In referring to this decision, I am not seeking to suggest that the consideration given in the majority judgments to the earlier cases relied upon by the parties in this appeal in relation to the consequences for criminal proceedings differs in any way from the law at the date of hearing the appeal, but I do believe that the judgments in C. helpfully summarise some aspects of the position. O’Donnell J. in his judgment (with which a majority of the Court concurred) commences a consideration of a number of prior decisions including The State (Byrne) v. Frawley [1978] I.R. 326 and A. v. The Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, by stating at para 31:-
“31. In a number of important cases, this court has held that while the general rule is that a declaration of invalidity will also render null and void actions taken on foot of the impugned provision, the declaration of invalidity did not always necessarily nullify transactions or steps taken or even convictions arrived at on the basis of, or pursuant to procedures established, by legislation subsequently declared invalid.”
18. Later, having referred to de Burca v. Attorney General [1976] I.R. 38 and its subsequent application in The State (Byrne) v. Frawley , he concluded in relation to the latter at the end of para. 34:-
“…The case therefore established an important and more broad-ranging, principle. Although a person convicted must be able to challenge a conviction on the grounds of the unconstitutionality of the legislation creating the offence, or controlling the mode of trial, and if successful the conviction would be quashed. It did not follow that such a conclusion must be reached in all cases for all those affected, even those whose factual circumstances may be identical to those of the successful claimant. This was a far-reaching decision, the implications of which were not necessarily recognised at the time.”
And continued at para. 35:-
“35. Although the decision that any person convicted by a jury empanelled under the 1927 Act could not challenge their conviction might now sit comfortably with the well-known decision of this court in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, that final convictions cannot be challenged on the basis of a subsequent determination of invalidity of a legislative provision, it is important to recognise it was not decided on that basis. Instead, it was treated as a case where the plaintiff was precluded from asserting, and could not benefit from, the invalidity even when such invalidity had already been established by the same court. It is notable that the proceedings in State (Byrne) v. Frawley [1978] I.R. 326 were State-side proceedings seeking an order of certiorari quashing the conviction, but that the conviction itself was separately under appeal. The decision of the court suggests emphatically, however, that if the point had been raised on the appeal, it would not have availed the applicant there either, even though the proceedings had not been concluded, and the conviction could not be treated as final, and thus falling within the principle established by A. v. Governor of Arbour Hill Prison. The decision of the Supreme Court in State (Byrne) v. Frawley is therefore clear authority that there is no absolute rule that once the constitutional invalidity of legislation is established, that all steps taken under it must be treated as a nullity.
36. The decision in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, discussed in more detail in the judgment of MacMenamin J., is a more elaborate treatment of the issue generally. That case established that even in the area of criminal law, the finding that a criminal offence, in that case created by the Criminal Law (Amendment) Act 1935, was inconsistent with the Constitution, did not mean that a person imprisoned on the basis of the conviction for that offence, could assert the nullity of the conviction, and claim release.
37. These cases are very important, since they establish beyond question that there is no automatic rule of consequential invalidity, and that certain matters, such as the finality of a conviction, or the failure to take a challenge, may preclude reliance on any invalidity subsequently established. However, both these cases occurred in the field of criminal law and involved attempts by a third party to claim the benefits of an invalidity established in other proceedings. Here, it is the appellant who has succeeded, and who claims for what he contends is consequential relief in the self- same proceedings, which are civil in nature. This, therefore raises slightly different issues.”
Issue for Decision
19. I am in agreement with Dunne J. that on the facts of this appeal the issue which has to be decided, as she puts it at para. 41 of her judgment, is whether the appellant could “be debarred from relying on the finding of invalidity of subss. 99(9) and (10) made in Moore in the course of his appeal”. The appeal being referred to is, I understand, the appeal against sentence to the Court of Appeal, which remains pending.
20. As appears from the judgment of Dunne J., the identification of the question arises from the principles contained in the judgments of this Court in inter alia The State (Byrne) v. Frawley and A. v. Governor of Arbour Hill Prison and judgments of the Court of Criminal Appeal in The People (D.P.P.) v. Cunningham [2012] IECCA 64, [2013] 2 I.R. 631 (” D.P.P. v Cunningham “), The People (Director of Public Prosecutions) v. Bolger [2013] IECCA 6 (” D.P.P. v Bolger “) and The Director of Public Prosecutions v. O’Connor [2014] IECCA 4 (” D.P.P. v O’Connor “).
21. Each of the above decisions of the Court of Criminal Appeal concerned whether the appellant in question was entitled to rely in his appeal upon the declaration of unconstitutionality of s. 29 of the Offences Against the State Act 1939, as inserted by s. 5 of the Criminal Law Act 1976, issued by the Supreme Court in Damache v. Director of Public Prosecutions [2012] IESC 11, [2012] 2 I.R. 266 (” Damache “). The purpose of doing so in each appeal was to challenge the validity of a warrant issued under s. 29 and hence the admission at trial of evidence obtained thereunder. In each case, the appellant had pleaded not guilty to the offences, had been convicted in advance of the judgment in Damache and had an appeal pending against conviction at the time the judgment in Damache .
22. These proceedings are judicial review proceedings. However, I am in agreement with Dunne J. that the entitlement of the appellant to an order of certiorari in the judicial review proceedings is dependent on the answer to the question as to whether he would be entitled to challenge the order made by the Circuit Court that the suspension of the sentence imposed on the 14 November 2013 on Bill No. 298/2012 be revoked and that the appellant serve the entire of the period of imprisonment originally imposed by the Court, on the ground that the Circuit Judge had no jurisdiction to make the order by reason of the invalidity of subss. 99(9) and (10) of the 2006 Act. This appears to follow firstly from the fact that orders made under the invalid subsections are not automatically rendered null and void. Second, from the clear principle from A. v. Governor of Arbour Hill Prison that if criminal proceedings are finally concluded then final convictions (and sentences) cannot be challenged upon the basis of a subsequent determination of invalidity of a legislative provision. Third, from a comparison of the position of the appellant in these proceedings with a person in exactly the same position as at the date of the judgment in Moore , save that he had not lodged an appeal against the severity of sentence as the appellant had done. Such a person, if he commenced judicial review proceedings similar to those commenced by the appellant, would fail in accordance with the decision in A. v. Governor of Arbour Hill Prison .
23. Accordingly, it is the existence of the appellant’s appeal that permits him to argue that his criminal proceedings have not reached finality. The appellant pleaded guilty to the 2012 offences and the 2015 offences and obviously lodged no appeal against conviction and hence, his convictions have reached finality. It is only the custodial sentences imposed on 18 May 2015 which are not final.
24. The judgments of the Court of Appeal in D.P.P. v Cunningham , D.P.P. v Bolger and D.P.P. v O’Connor are helpful in identifying the extent to which the criminal proceedings which have been determined in the Circuit Court but where there is an extant appeal are not finally determined and also in identifying the principles according to which an appellant may be entitled in his appeal to rely upon a relevant declaration of invalidity of legislation made subsequent to the decision of the Circuit Court appealed against. D.P.P. v Cunningham is of particular assistance to the first of these questions.
25. In D.P.P. v Cunningham , the Court of Criminal Appeal (Hardiman, Moriarty and Hogan JJ.), in a judgment delivered by Hardiman J. on 11 May 2012, considered a submission made on behalf of the Director that the verdict of the jury convicting the applicant was itself final, notwithstanding the existence of an appeal and hence, in accordance with the judgments in A. v. Governor of Arbour Hill Prison , the Damache declaration of invalidity could not be relied upon as a ground of appeal. That submission was rejected. Hardiman J., having referred to A. v. Governor of Arbour Hill Prison and to the then relevant constitutional and statutory provisions relating to the Supreme Court and the Court of Criminal Appeal, stated at para. 51:-
“51. The courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and the Court of Criminal Appeal, both primarily appellate courts. The finality attaching to the judgments of other courts are, as Finlay C.J. in Dalton v. Minister for Finance [1989] 1 I.L.R.M. 519 expressed it, at p. 273,”subject to a proper right of appeal as provided by law”. It therefore appears that where there is (as in this case) a right of appeal provided by law, finality cannot be said to attach to the decision of a court which is subject to that right of appeal unless and until the appeal has concluded or no appeal has been taken within the time limited for doing so.”
26. In D.P.P. v Cunningham , during the trial in the Circuit Court, counsel for the accused had challenged the validity of the warrant issued under s. 29(1) of the Act of 1939 on grounds other than the Damache point. He had never, accordingly, accepted the validity of the warrant.
27. On the facts of D.P.P. v Cunningham , the Court concluded ultimately that the appellant was not precluded from relying upon Damache in his appeal. The Court at para. 71, having referred again to A. v. Governor of Arbour Hill Prison and The State (Byrne) v. Frawley , then stated:-
“71. … None of these factors particular to cases such as Corrigan v. Irish Land Commission [1977] I.R. 317, The State (Byrne) v. Frawley and A. v. Governor of Arbour Hill Prison [2006] IEHC 169, [2006] IESC 45, such as election, acquiescence and estoppel by conduct, apply to the position of the present applicant. It can thus be said that the present applicant is not debarred by his own conduct from taking advantage of the finding of unconstitutionality.
28. Next, in D.P.P. v Bolger , the Court of Criminal Appeal (Denham C.J., DeValera and McGovern JJ.) in a judgment delivered by Denham C.J. on 14 March 2013, reached on its facts the opposite conclusion. On the facts of that case, there had been no formal challenge to the legality of the search warrant during trial, nor would it appear that any reference was made to the possibility of any infirmity in the legislation unlike in two other cases, The People (Director of Public Prosecutions) v. Kavanagh & ors [2012] IECCA 65, and The People (Director of Public Prosecutions) v. O’Brien [2012] IECCA 68, to which reference was made.
29. The Court, having referred to the now well known passage from Murray C.J. in A. v. Governor of Arbour Hill Prison in relation to finality, then stated from para. 20:-
“20. The finality of a trial is at its conclusion. In this case the applicant’s appeal was pending and so it had not reached finality. Thus, applying this principle the Court permitted the applicant to raise and argue the Damache case.
21. However, there is another relevant principle which is also applicable, that relates to the issues which may be raised on an appeal.
22. This court hears an appeal from a trial. After a trial an accused has a right of appeal. However, the issues which may be raised on appeal relate to those raised at the trial. That is the applicable general principle. However, as is clear from our jurisprudence, if there has been demonstrated some error of substance, such as to ground an apprehension that a real injustice has occurred, and an explanation as to why the point was not taken, then the Court may permit a point not made at trial to be argued on appeal.
23. In The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 IR 329, referred to as Cronin (No. 2), Kearns J. (as he was then) stated at 346, paragraph 46:-
“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.”
There was re-enforcement of this point in State (Director of Public Prosecutions) v. O’Regan [2007] IESC 38, [2007] 3 IR 805 at 821, paragraphs 55 to 56, where Kearns J. stated:
24. Thus, in general, in deciding whether an issue may be raised on appeal, it is necessary to consider the trial to see if the matter was raised and, if so, whether there was a decision by the court of trial.”
30. Later in the judgment, the Court summarised these principles at para. 34 and identified that, by reason of the failure to raise the issue at trial, ” prima facie this is not a case where the Damache decision may be raised”. However, the Court then indicated that it heard submissions on the evidence obtained pursuant to the s. 29 warrant, and the other grounds of appeal, to determine if a fundamental injustice had been done or there existed a reasonably explained substantial error leading to an apprehension of real injustice. It concluded on the facts that this was not the case. It thus appears from D.P.P. v Bolger that it is not sufficient for an appellant simply to establish that there is a pending appeal so as to entitle that person to raise a ground of appeal in reliance upon a declaration of invalidity of a statute, subject to the finalisation of the criminal proceedings in the Circuit Court. He must also be able to satisfy the Court that, in accordance with the Cronin No. 2 principles, they are entitled to raise the relevant issue on appeal.
31. In the third of the judgments of the Court of Criminal Appeal, The Director of Public Prosecutions v. Paul O’Connor (Unreported, Court of Criminal Appeal, McKechnie J., 4th February, 2013) the Court (McKechnie, DeValera and McGovern JJ.) refused permission to allow the appellant to rely upon the Damache point. The main points of that judgment are set out in a subsequent judgment of the same court in D.P.P. v O’Connor refusing a certificate under s. 29 of the Courts of Justice Act 1924. As appears from paras. 8 to 13 of the later judgment, the Court considered it rejected the application to argue the Damache point on appeal on two separate grounds, one that it had not been raised at trial and secondly, that a concession made by counsel on behalf of the accused that the search warrant had been applied for in accordance with law and granted in accordance with law precluded the applicant from taking an inconsistent approach on appeal.
Hearing of 18 May
32. I now turn to the approach taken by the appellant, through his counsel, at the hearing on 18 May 2015 before Her Honour Judge Ring. No challenge was made to the jurisdiction of Judge Ring to deal both with the re-entry pursuant to s. 99 of the matters on Bill No. 298/2012 and sentencing on Bill No. 99/2015. The appellant could not, of course, on the facts of his case, have raised the type of constitutional objection to s. 99(9) & (10) which was raised in Moore. However, in my view nothing turns on that fact in particular. In accordance with D.P.P. v Cunningham, if an objection had been made to the jurisdiction of the Circuit Judge to deal with both matters on the day or if there had been an objection to the fairness of procedures, then it may well be that the appellant should be entitled to raise grounds on appeal in relation to the decision to lift the suspension of the sentences on Bill No. 298/2012, which would include a lack of jurisdiction of the Circuit Judge by reason of the invalidity of subss. 99(9) and (10).
33. However, factually, matters went further than a simple absence of any objection. The High Court judge at para. 55 of her judgment concluded that the appellant had submitted to the jurisdiction of the Circuit Court and “acquiesced” in the exercise by the Circuit Court of its jurisdiction under ss. 99(9) and (10), either by the order of 22 April 2015, or at the hearing on 18 May 2015 and the order made on that day. I respectfully agree.
34. The appellant, through his counsel, expressly asked the Court to observe the principle of totality in dealing with both the s. 99 matter in relation to Bill No. 298/2012 and sentencing on Bill No. 99/2015 at the same hearing. His counsel set out a number of relevant facts in relation to the appellant and his circumstances and then stated (at p. 16 of transcript):-
“…I think that is as much as can be said. I would ask obviously the Court to balance the competing interest of doing justice as between the parties and also Mr. Wansboro. He is a young man. He is going to be released into the community at some stage. It is obviously the case that consequential orders will flow and the Court will be considering this in light of the section 99 matter. I am simply asking the Court to observe the principle of totality in that regard. It is clear that the Court can if it so minded impose all of the sentences of imprisonment previously imposed, … or the Court can, I suppose impose such element of it as it feels is appropriate and then marry that with the sentence will obviously impose in relation to this incident…”
35. The trial judge, in delivering her sentencing decision, dealt firstly with the facts pertaining to the charge on Bill No. 99/2015, Mr. Wansboro’s own injuries suffered in the incident and certain other prior convictions. Turning to Bill No. 298/2012 and, having referred to the sentences imposed, their suspension and the warning given to Mr. Wansboro in November 2013 that if she saw him again within the suspended period, she would impose the three years, the Circuit Judge stated that she was lifting their suspension.
36. She then turned to the sentence on Count 2 of Bill No. 99/2015 and initially stated:-
“..[t]he sentence on bill 99/2015 is required by law to be consecutive to the three year sentence. I must have regard, in imposing a consecutive sentence, to the totality principle, but it seems to me that in light of the short period of time before Mr. Wansboro offended, that regard is limited…”
37. She then referred to a number of other matters and returned to this towards the end of her decision, saying (at p.21 of the transcript):-
“…I have to have regard to the totality principle in the light of the matters on bill 298/2012 in sentencing. However, in this case I cannot overlook the fact that Eric Wansboro was fully aware of what was at risk and took the risk regardless. Had Eric Wansboro not pleaded not [sic] guilty the appropriate sentence would have been one of six and a half years. Taking these matters into consideration and weighing the limited mitigation in this case and having regard to the totality principle, I find that the appropriate sentence on Count 2 on bill 99/2015 is one of five and a half years. This will commence at the lawful expiration of the sentence imposed on bill 298/2012. …”
38. Having regard to the approach taken at the sentencing hearing on 18 May, I have concluded that the appellant has not established that he would be permitted to raise at his sentencing appeal any ground of objection to the manner in which he was brought before the Circuit Court under s. 99 or to the jurisdiction of the Circuit Judge to consider and determine the revocation of the suspended sentence under s. 99, unless, in accordance with the principles in Cronin (No. 2) , if he were not permitted to do so would ground an apprehension that a real injustice had occurred. This is in accordance with the approach in D.P.P. v. Bolger and D.P.P. v. O’Connor .
39. Further, on the facts it may properly be considered that the appellant, not only in acquiescing to the jurisdiction of the Circuit Court in dealing with both the s. 99 re-entry of Bill No. 298/2012 and the sentencing on Bill No. 99/2015 together, but also in seeking to have the sentence on Bill No. 99/2015 reduced by reference to the totality principle and thereby obtaining some benefit, is now debarred on appeal from taking an approach inconsistent with that conduct. In so concluding, I am not suggesting that the factual position is similar to that in The State (Byrne) v. Frawley , given that it could not be concluded that the appellant acquiesced in a process which he knew or understood to be unconstitutional. Rather, he acquiesced in the process and jurisdiction of the Court and sought by his conduct to obtain some benefit for himself in terms of mitigating the sentence to be imposed in respect of the offence to which he had pleaded guilty on Bill No. 99/2015.
40. I do not consider that the facts give rise to an apprehension of a real injustice having occurred. This is principally for two reasons. First, the appellant was lawfully before the Circuit Judge having been remanded in custody on Bill No. 99/2015 for sentencing, pursuant to the order of the Circuit Court (His Honour Judge Nolan), made on 22 April 2015, following his plea of guilty to Count 2 on Bill No. 99/2015. Having so pleaded and been convicted on Bill No. 99/2015, it was open to inter alia the Gardaí to seek to have the Circuit Judge deal with the matter of revocation of the suspended sentences on Bill No. 298/2012 pursuant to s.99(13). Further, s. 99(17) gives a statutory jurisdiction to the Court to revoke a suspension which is not dependent on the procedures envisaged by s. 99(9). Hence, when the appellant was lawfully before Her Honour Judge Ring on 18 May 2015, having been remanded for sentencing on Bill No. 99/2015, the Circuit Judge could have considered and decided upon the suspension pursuant to s. 99(17). This provides:
“(17) A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.”
41. Hence, if any objection had been taken to the procedures under ss. 99(9) and (10), the Circuit Judge could have considered exercising the statutory jurisdiction under s. 99(17) as the appellant was lawfully before her on Bill No. 99/2015 and had pleaded guilty to the trigger offence. I note that there does not appear in s. 99(17) to be an express obligation to make the sentence imposed on Bill No. 99/2015 consecutive to any order made under s. 99(17) that a prior suspension be lifted and the person now serve all or part of the sentence previously imposed. No issue was raised in relation to this in this judicial review or appeal. Whether or not this is a matter which may be taken into account by the Court of Appeal in the appeal against severity remains for the Court of Appeal.
42. For these reasons, I am unable to agree with the conclusion reached by Dunne J. that the appellant did not adopt any strategy or engage in a conduct in the course of the proceedings which would debar him from relying upon the declarations of unconstitutionality of sub-ss. 99(9) & (10) of the 2006 Act in his appeal against sentence imposed on 18 May 2015 on Bill No.298/2012. Accordingly, I would dismiss the appeal.
The People v Byrne
, sub nom Director of Public Prosecutions v Byrne
[1995] 1 ILRM 279 O’Flaherty J
This is an application brought on behalf of the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993 to review the sentence passed upon the accused, Christopher Byrne, on 19 January 1994 by the Central Criminal Court presided over by the then President of the court, Hamilton P. The sentence was one of ten years’ penal servitude in respect of two counts of rape and a sentence of ten years’ imprisonment on one count of buggery contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. The sentences are to run concurrently. It is sought to say that these sentences are unduly lenient having regard to all the circumstances of the case, the victim impact reports submitted to the court, the medical report on the victims as well as the oral evidence in the case.
S. 2 of the Criminal Justice Act 1993, so far as is relevant provides:
(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 Criminal 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
(a) 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
(b) refuse the application.
The court requested counsel for the Director of Public Prosecutions to submit any fact or circumstances which it was alleged on behalf of the director was taken into consideration by the trial judge in imposing the sentences and which was not relevant to the case or to any fact or circumstances which the director could submit was relevant to the case and was not taken into consideration by the trial judge in imposing sentence. In response to that request a submission dated 7 October 1994 was furnished to the court, a copy being supplied to the accused. It is right to say that Mr Haugh SC and Mr O’Hagan arguing the case on behalf of the Director of Public Prosecutions essentially have followed that submission. The submission was as follows:
On 19 October 1993 the respondent affirmed signed pleas of guilty on a number of charges on which he had been sent forward to the Central Criminal Court for sentence, by the District Court. The first charge on which he affirmed his signed plea was that he did between midnight on 11/12 July 1994 and 4.40 a.m. on 12 July 1993 at certain licensed premises rape, who, for convenience and to preserve her anonymity, the first woman.
On 26 November 1993 the facts of the circumstances of that offence were outlined in evidence by Sergeant Leo McGinn to the learned President of the High Court. The offence occurred on the night of the burial of the first woman’s mother. The respondent broke into her house while she was asleep and took her from beside her sleeping husband to the sittingroom of the premises. He had what looked like a white stick in his hand and he was asking for money. After a brief period in the sittingroom the respondent, with his hand over her mouth, brought that woman to what is known as the bar section of the building. He took off her panties and left his stick on the ground and took a knife from his pocket. He then raped her. He then left. The woman then left to raise the alarm by making a phone call from a neighbour’s house and as she did so the respondent grabbed her again as she was crossing the road, put a headlock on her and again brought her back across the road and forced her into her house. He then made good his escape.
The second and third charges on which the accused affirmed his signed pleas of guilty related to the rape and buggery of the second woman in the small hours of the morning on 13 July 1993, some 24 hours after the first offence had occurred. This woman was at the time 77 years of age and a widow and she lived alone in a certain part of the country. Again evidence as to the circumstances of these offences was given by Sergeant McGinn on the same occasion. This woman had retired to bed at about 11.00 p.m. and she was woken by the respondent standing in her room. He asked her for money and for a video. The respondent lay on the bed beside her and began to fondle her breasts. He tore her night attire almost the complete length of the nightdress. He threatened her with a knife. He raped her. He then tied a cloth around her mouth and stuffed part of it into her mouth as well as tying her hands with a belt. He ordered her to lie face down and he again threatened her with a knife. He then buggered her. He hit her a number of blows in the facial area.
The respondent was arrested on 16 July 1993. Whilst detained under the provisions of s. 4 of the Criminal Justice Act 1984 he made confessions to the investigating gardaí. He signed pleas of guilty in the District Court and affirmed those written signed pleas in the Central Criminal Court.
The accused had a previous conviction in 1985 for indecent assault and the circumstances of that offence were also outlined by Sergeant McGinn to the learned President of the High Court on 26 November 1993.
It is not submitted on behalf of the applicant that the sentence of 10 years’ penal servitude in respect of the rape of the first woman was per se unduly lenient having regard to the mitigating factors as properly found by the learned President of the High Court.
It is however submitted on behalf of the applicant that the sentence of 10 years’ penal servitude for the rape of the second woman and the sentence of 10 years’ imprisonment for the rape under s. 4 of the Criminal Law (Rape) (Amendment) Act 1990 (hereinbefore referred to as the buggery charge) were unduly lenient in that all sentences imposed were to run concurrently so that in effect no additional penalty or sanction was imposed in relation to the offences committed against the said second woman. Further or in the alternative it is submitted that those sentences which relate to the offences against the second woman were unduly lenient, having regard to the accused’s previous offence against the first woman and it is submitted that the learned President of the High Court failed to take this aspect properly or adequately into account. It is submitted that the offence against the first woman and the offences against the second woman were totally separate and unconnected and it is accordingly submitted that because no additional sanction or penalty was imposed in relation to the offences against the second woman that those sentences were unduly lenient.
There were prepared victim impact reports in respect of both women by Dr Lyster, who is a consultant psychiatrist. What will be set forth is a brief summary of some of his findings in regard to each case.
To deal now with the first one. This report sets out that this unfortunate woman suffered sleep disturbance with nightmares, the nightmares being of a consistent pattern of being trapped somewhere, with men everywhere and no means of escape. She tends to wake up at the same time each night, approximately 3 a.m., the time at which the incident occurred, sweating and extremely anxious and frightened. She has been taking sleeping tablets since the incident but despite this continues to have disturbed sleep.
Depressed moods since this incident . She complains of feeling depressed and has mood swings. She has lost interest in herself and in life in general.
Anxiety since the incident . This woman has suffered severe anxiety and worries constantly that she will be attacked again. She feels very vulnerable and barricades the doors with a chair or table. She has become obsessed with having doors and windows locked. She has been unable to go out socially since this incident and tends to avoid meeting people. She is unable to relax, unable to get any enjoyment from life.
Personality problems since this incident . This woman has lost confidence in herself, become paranoid, and has guilt feelings over what happened, blaming herself for not being able to prevent the attack but realised that her fear was so intense at the time she was overwhelmed and was unable to think rationally.
Since this attack she has low self esteem and feels dirty and tends to avoid meeting people as a result. She only feels safe with people she knows. Since this incident she has a dislike for men in general except for old fatherly type men and avoids answering the door.
Affect on the family since the incident . This woman states that her relationship with her family has changed and in particular that her ten year old son has been clinging excessively to her and does not want to let her out of sight. In September 1993 this boy did not want to separate from his mother and go to school and became very upset.
Affect of relationship with husband . This woman states that since this assault her relationship with her husband has altered and that she is no longer able to be intimate with him, as close contact with him invokes painful memories of the assault.
Changes in social life since this incident . This woman will not go out alone and always brings a family member with her for support. Prior to this she drove the car regularly into town and did her own shopping etc. Since this incident she has not driven the car and goes by taxi. She tends to avoid meeting people she knows since the assault and has become somewhat paranoid believing they comment about her.
That is a summary of what the doctor found in relation to his examination of the first woman.
The victim impact report on the second woman sets out the history of the actual assault and then the doctor relates that immediately following the assault she felt very shocked and afraid, was shaking all over, her sleep was disrupted but she had no nightmares. At the time of the assault she thought she would be killed, she felt helpless and she thought the accused was going to stick a knife in her and was very frightened. She knew she had no way of saving herself and that if she shouted she would not be heard. She saw that he had a slip in his hand which she believed he would tie over her mouth if she shouted. He then relates the woman’s personal history, that she is a widow, her husband having died seven years before. He then relates that she was a very independent, active woman and did her own shopping, went into town once a week by bus and so forth. His summary in relation to this woman is that she had been severely traumatised but had made a remarkable recovery. She still continues to suffer residual effects of this trauma, being anxious, being fearful of further assaults. The fear is worse in the dark; there is a restriction of social life in consequence of the attack. She has headaches, forgetfulness and loss of confidence in herself. He concludes that the woman was severely traumatised during this incident and she is now suffering the consequences of this assault and is aware of her own vulnerability. She continues to have fears of a further assault and in his opinion this fear will remain with her for the foreseeable future.
One comes then to the statement of the accused. He made this statement immediately after his arrest and it can be summarised by saying that he made a full and frank confession of his involvement in both assaults.
Dr Art O’Connor, the psychiatrist, concluded that the accused had been in and out of prison since around 1987 and his longest sentence was for two years. He finished that sentence in February 1993 and was taken into custody again on the present charge on 16 July 1993. He has over the years abused drugs such as LSD, cannabis and various prescribed sedative drugs which he names. They are all sedative drugs similar to valium. The accused told Dr O’Connor that he did not know the women whom he had assaulted and that he was ‘out of his head’ because of alcohol and tablets. Dr O’Connor concluded that mental state examination reveals no evidence of serious psychiatric illness such as schizophrenia or depression. He is of normal intelligence. He is quiet but he is well able to discuss his problems and his situation. He is very unhappy about his present position and because of what he has done. His family are also quite upset but they seem to be supporting him. He is low in mood from time to time since he has come into prison but he is not suicidal.
Ms Rita McArdle, probation and welfare officer, in a report of 25 November 1993 concluded as follows:
Following assessment of the defendant and his circumstances, a picture emerges of an inadequate young man, with poor social skills and limited intellectual and personal resources. His life to date has been marked by school failure, illiteracy, an absence of any employment experience and an aimless, unstructured existence. These difficulties have been further compounded by chronic alcohol and drug abuse and criminal involvement. The only apparent positive feature in his life is his reported experience of a happy family life. While family members are presently extremely shocked and have not visited him to date in custody, one member states that continued family support will be available to him. He does not appear to have any insight into his behaviour but accepts his guilt in these very serious offences before the court. I believe in his present state he is at risk in the community. He is a man who will require extensive and long-term professional intervention and counselling, if any positive change is to be effected in his life.
The learned trial judge in sentencing the accused concluded that the charges were very serious charges. He went on to say:
I have heard the evidence with regard to the circumstances from the arresting guard and there is no dispute about them. I have had the benefit of reading the psychiatric report prepared by Dr Art O’Connor and in addition I have had the benefit of two reports, one in respect of each of the injured parties, from Dr Lyster, consultant psychiatrist. By virtue of the terms of s. 5 of the Criminal Justice Act 1993, the court is obliged in determining sentence in respect of the offences to which that section applies to take into account any effect whether long-term or otherwise of the offences in respect of whom the offences were committed. This is an obligation placed on the court and is in addition to the other matters which the court is obliged to take into account in determining sentence. These considerations are well settled and there is no need for me to state them in court in any great detail.
I have had regard to the submissions made by Mr Grogan SC for the accused, and I am obliged to take into account also the manner in which the accused has approached this case by signed pleas of guilty in the District Court, he has not sought to change his pleas before this Court as frequently happens, and to that extent he has done everything possible to lessen the effect of the crime on the two ladies concerned; and as I say I am obliged to take that factor into account and I do. The offences, as I say, particularly the offences of rape and buggery are serious offences and this is not in any way to belittle the seriousness of the other offences in respect of which the accused has signed pleas of guilty. I don’t propose in detail, or at all, to set forth in the course of this judgment the circumstances in which the rapes occurred. They are dealt with in the statement made by the accused of which evidence has been given, and also they are set forth in fairly considerable detail in the reports prepared by Dr Lyster to which no exception has been taken by counsel on behalf of the accused.
Were it not for the plea of guilty I would have considered that the appropriate sentence in respect of the rape and buggery cases to be fourteen years’ imprisonment in respect of the buggery and penal servitude in respect of the rape charges, but taking into account, as I do, the way in which the accused has approached the case and conscious of my obligations not only to him but to society and to the victims of these attacks, I would consider that a fair and reasonable sentence to be imposed in respect of the charge of rape of the first woman to be ten years’ penal servitude, and I sentence him to ten years’ penal servitude to date from today. And I have taken into account the fact that he has been in custody since July, and I am sentencing him to ten years’ penal servitude, and I will impose a similar sentence in respect of the rape of the second woman, and I sentence him to ten years’ penal servitude. And in respect of the buggery charge in respect of the second woman, I will sentence him to ten years’ penal servitude. [ recte imprisonment].
The essential submission advanced before us on behalf of the Director of Public Prosecutions is that the accused should serve an additional length of sentence because the court was concerned not with the rape of one woman but of two victims within a short space of time.
What is for resolution before us is whether the sentence imposed in respect of the offences committed against the second woman are in all the circumstances, in the words of the section, ‘unduly lenient’.
Since this is the first case brought under the Act it is appropriate to say something about how the court thinks the section should operate.
In the first place, since the Director of Public Prosecutions brings the appeal the onus of proof clearly rests on him to show that the sentence called in question was ‘unduly lenient’.
Secondly, the court should always afford great weight to the trial judge’s reasons for imposing the sentence that is called in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to court as in this case — both women were very adamant that they did not want to come to court — he may detect nuances in the evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced: what Flood J has termed the ‘constitutional principle of proportionality’ (see People (DPP) v. W.C. [1994] 1 ILRM 321), his decision should not be disturbed.
Thirdly, it is in the view of the court unlikely to be of help to ask if there had been imposed a more severe sentence, would it be upheld on appeal by an appellant as being right in principle? And that is because, as submitted by Mr Grogan SC, the test to be applied under the section is not the converse of the enquiry the court makes where there is an appeal by an appellant. The inquiry the court makes in this form of appeal is to determine whether the sentence was ‘unduly lenient’.
Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.
There will be cases where the question to be resolved is whether a monetary penalty, a suspended sentence or a sentence of a short term of imprisonment can be categorised as ‘unduly lenient’ and, it may be, there will be cases in that category which will admit of a ready resolution.
But in the case of Christopher Byrne it has to be observed that by any standard a sentence of ten years’ incarceration is a substantial one. Prima facie it could not be categorised as ‘lenient’, let alone ‘unduly lenient’.
To deal with the circumstances of this case which have already been outlined, while every rape is an evil and horrible act and a gross violation of womanhood, some rapes will have more significant aggravating features than others. Mr Haugh SC has submitted before us, as we think correctly, on any scale the rapes in this case must be in the higher range as having many aggravating factors. There is the fact that the attacks took place in the dwellinghouses of the women at night. That there was the use of a knife as an additional element of force to the actual physical act of rape. The court also has had regard to the age and circumstances of the second woman, and the second offence that was committed against her.
Then one has to assess the accused’s situation. It has already been detailed. This young man, aged 24 years, was very much at the mercy of drink and drugs but the single outstanding matter in his favour is that he confessed to these crimes immediately with, as Mr Grogan has submitted, extraordinary speed. He never departed from that position. He signed pleas of guilty in the District Court and, once again, he did not retreat from that position when he was sent to the Central Criminal Court for sentence.
The women on being asked whether they wished to come to court as is required under the legislation were absolutely clear that they did not want to come to court at all. It is worth reiterating again what the significance of an early confession followed by a plea of guilty is as set forth by Finlay CJ, speaking for the Supreme Court, in the case of People (DPP) v. Tiernan [1988] IR 250; [1989] ILRM 149 and reiterated with increased emphasis in the more recent decision of the Supreme Court in Director of Public Prosecutions v. G. [1994] 1 IR 587, in which the unanimous judgment of the court was delivered by the Chief Justice on 11 November 1993. To recall what was said in Tiernan, the Chief Justice stated (at pp. 255/153):
I have no doubt, however, that in the case of rape, an admission of guilt made at an early stage in the investigation of the crime which is followed by a subsequent plea of guilty can be a significant mitigating factor. I emphasise the admission of guilt at an early stage because if that is followed with a plea of guilty it necessarily makes it possible for the unfortunate victim to have early assurance that she will not be put through the additional suffering of having to describe in detail her rape and face the ordeal of cross-examination.
Here the learned President said that if there had not been a plea of guilty he would have imposed a sentence of 14 years.
Then we are urged to increase the sentence because of the proximity of the attacks on the two women. Having committed the first attack, leaving aside altogether the previous conviction for indecent assault some years before, here he is engaged in a second attack on a second woman. However, the court takes the view that it might have been worse if these attacks had taken place over a substantial interval of time. The case made on behalf of this accused is that he was obviously going through a particularly aberrational period as a result of being engaged in alcohol and drug abuse.
If we were to increase the sentence it would have to be a substantial figure such as the figure mentioned by the learned President, namely 14 years and then one would have to ask: what would the gross figure have been if there had not been the mitigating factor of the confession and the pleas of guilty and one would have to add another four years at least bringing it to the extremely high figure of 18 years.
We are satisfied that the learned trial judge brought all his immense experience to bear on this case. Had he expressly differentiated between the two offences, he might have imposed (as Mr Grogan suggested as a possibility) a sentence of eight years’ imprisonment in respect of the first woman and a sentence of ten years in respect of the second woman. It is difficult to see how this Court could have interfered with such a sentencing policy. It is clear that the learned President gave effect to that differentiation in practice by imposing a sentence of ten years’ imprisonment; he might have done it the other way but we are clear in our minds that he brought all the correct principles to bear to this case. It has not been suggested that he took into consideration anything that he should not have taken into consideration.
In the circumstances the court declines to interfere with the sentence that was imposed in this case and refuses the application of the Director of Public Prosecutions.
Arnold v. Windle
, Supreme Court, March 4, 1999, the Supreme Court
JUDGEMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 4TH DAY OF MARCH 1999 [Nem. Diss.]
1. This is an appeal from the judgment and order of Mr Justice Peter Kelly given and made on the 4th day of November 1998 whereby he refused an application made on behalf of Robert Arnold (the Applicant) for leave to apply for an order of certiorari by way of judicial review of certain orders of Judge Desmond Windle made on the 24th day of September 1998.
2. As appears from the Affidavits sworn on behalf of the Applicant five summonses, each dated the 30th January 1998, alleged a series of offences by the Applicant under the Road Traffic Act 1961 as amended either by the Road Traffic (Amendment) Act 1984 or the Road Traffic Act 1994. The offences alleged could be described (colloquially) as drunken driving, driving
with no insurance, driving with no licence, failing to produce a driving licence and failing to produce a certificate of insurance. A summons dated the 17th February 1998 alleged that the Applicant had on the same date as that to which the other summonses referred uttered a forged document purporting to be a driving licence knowing the same to be forged contrary to section 6 of the Forgery Act 1913. The charges under the Road Traffic Acts were listed for hearing on the 15th May 1998 and the alleged offence under the Forgery Act on the 21st May 1998. All of the said summonses were subsequently adjourned for hearing to the 21st September 1998 when they came before the above named Judge Desmond Windle. The Applicant undoubtedly pleaded guilty to the offence of drunken driving and of having no valid driving licence. It was his understanding that the charge in respect of motor insurance had been struck out and that the allegation of forgery was not being pursued by the Director.
3. The prosecuting Garda gave evidence of two previous convictions for drunken driving by the Applicant. Mr Declan Fahy, the solicitor on behalf of the Applicant, made a plea in mitigation in the course of which he sought to refer to a medical report prepared by Dr Raymond Murphy and requested the Court to receive the same. Judge Windle refused to receive the medical report in the absence of oral testimony from the doctor. The learned Judge then imposed a fine of £l00 in respect of the offence of drunken driving and a mandatory disqualification for two years from driving. He fined the Applicant £50 for the offence of having no driving licence.
4. On the Applicant’s account of the events the Registrar of the Court then informed the Trial Judge that the summons for uttering the forged licence was due to be heard at 2 pm on the same day. On being so informed the Judge – the Applicant says – vacated the order made by him and adjourned the proceedings to the 24th September 1998.
-2-
5. When the matter came before the Court on the 24th September 1998 the Applicant again pleaded guilty to the offence of drunken driving and the offence of having no licence. The representative of the Chief State Solicitor who was present informed the Court that the Director was not proceeding with the offence alleged under section 6 of the Forgery Act 1913. The summons in relation to that offence was then struck out. The same evidence as to previous convictions was given by the prosecuting garda and the same plea in mitigation was made by the solicitor on behalf of the Applicant. The Applicant and his solicitor have sworn that the Judge indicated that he would not take into account the matters dealt with by way of mitigation unless the Applicant himself gave evidence in relation to them. Furthermore, it is said, that the Judge indicated that he would take an adverse view of the Applicant’s failure to give sworn evidence in mitigation. The Applicant declined to give any such evidence. The learned Judge then imposed the following penalties: three months imprisonment and a fine of £250 in respect of the offence of drunken driving together with a disqualification from driving for two years. A fine of £50 was imposed in respect of the offence of having no driving licence.
6. It appears that the case was mentioned later the same day when the Judge informed Mr Matthew Shaw of the Chief State Solicitor’s office that he, Mr Shaw, had misled the Director of Public Prosecutions in relation to the offence alleged under the Forgery Act 1913 and further that the learned Judge had come to the view that no agreement had been reached in regard to that allegation. The learned Judge is then quoted as saying that he would himself have words with the Director of Public Prosecutions. The Judge then reinstated the summons alleging forgery under the 1913 Act. The Applicant was put to his election as to manner of his trial on the forgery charge and he elected for trial by judge and jury. He then sought and
-3-
obtained a surety and filed an appeal from the sentences imposed on him by the learned Judge of the District Court.
7. The grounds on which the judicial review were sought were that the learned Judge acted in excess of jurisdiction in that he:-
“(A) Failed to take into account evidence offered in mitigation of the Applicant;
(B) took into account matters which had not been proved or given in evidence before him in sentencing the Applicant
(C) Failed to take into account the representations made on behalf of the Applicant.
(D) Erred in law in requiring the Applicant to give sworn evidence in mitigation and in inferring adversely from his failure to do so.”
8. As Mr Justice Kelly pointed out the Applicant could have no complaint about the recording of convictions against him: he had pleaded guilty to the offences of which he was so convicted. His complaint was limited to the penalties imposed and the procedures adopted by the District Judge in determining such penalties. Mr Justice Kelly pointed out that the granting of leave to apply for judicial review involved the exercise of the Court’s discretion and in doing so it was appropriate to have regard to the fact that the challenge related to the penalties and not the conviction and that an appeal had been lodged from the decision of the
-4-
learned District Court Judge to the Circuit Court in which the severity of the sentence could he reviewed. The learned High Court Judge took the view that in the circumstances judicial review was not appropriate and in the exercise of his discretion refused to grant leave to apply for it. Mr Justice Kelly was clearly correct in saying that certiorari is a discretionary remedy. Furthermore it is one which the Court will grant cautiously where there is an adequate alternative remedy (see the decision in Duff v. Mangan [1994] ILRM 91). The availability and invocation of the right of appeal by the Applicant are matters which properly would weigh heavily on any court asked to grant leave to apply for judicial review.
9. On the other hand the actions taken by the District Court Judge and the statements ascribed to him in the affidavits sworn by the Applicant and his solicitor and the inferences which might be drawn from such actions and statements might suggest that the learned Judge had (in the words of Henchy J in the State (Holland) v. Kennedy [1977] IR 193) “Fallen into unconstitutionality or was in breach of the requirements of natural justice.” Certainly it would seem surprising for a trial judge to refuse to accept a medical report in relation to a plea in mitigation where, as in the present case, the prosecution raises no objection to such hearsay evidence. The disparity between the penalties imposed by the learned Judge on the 21 St September 1998 and the 24th September 1998 – in particular the imposition of a custodial sentence on the later date – is difficult to understand. The Applicant contends that the Trial judge was wrongly influenced by his belief that a charge under the Forgery Act was outstanding against the Applicant. Counsel on behalf of the Applicant rightly pointed out that it would be improper for a Trial Judge imposing a penalty to have regard to an outstanding charge in respect of which an accused had not been convicted. More particularly the learned Judge should not have regard to a charge which he had been told by the prosecution authorities was being withdrawn. Indeed this Court was informed that the
-5-
forgery charge reinstated at the direction of the learned District Court Judge has since been withdrawn and struck out.
10. If it were established that the learned Judge had acted unconstitutionally in imposing the penalties on the 24th September 1998 then it could be argued with considerable force that the availability of an appeal to the Circuit Court, already and contingently invoked by the Applicant, would not provide an adequate remedy for him. He was entitled to have the penalty to be suffered by him imposed in the Court of First Instance in accordance with the requirements of constitutional justice and to exercise his right of appeal, if thought fit, from the penalty so determined.
11. I would be very slow’ to interfere with the exercise by Mr Justice Kelly of the discretion conferred on him but it does seem to me that in the circumstances of the case and on the basis of the evidence available at this stage that the due administration of justice requires that leave to apply should be granted. I would accordingly allow the appeal and grant leave on the grounds set out in the Applicant’s statement of grounds dated the 2nd November 1998 and herein before referred to.
People (DPP) v Drinkwater
[2007] I.E.C.C.A. 84
JUDGMENT of the Court delivered on the 31st day of July, 2007 by Murray C.J.
This is an application for leave to appeal against a sentence of imprisonment for two years for the offence of burglary contrary to s. 12(b)(3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 which was imposed by the Dublin Circuit Court on 26th June, 2006 the applicant having first pleaded to the offence on 22nd February, 2005.
Facts relating to the offence
On 15th June, 2006 evidence was given before the Circuit Court by investigating Garda to the effect that the applicant along with his co-offender, Noel Blake, was arrested in the early hours of the morning of 22nd January, 2004 in Bloomfields Shopping Centre, Dun Laoghaire. The evidence was that they had entered the cash office in the car park of the shopping centre. They had attempted to remove a safe in the office which was subsequently ascertained by the Gardaí to have contained €9,042.00.
Evidence was given that the applicant, at the time of the Circuit Court hearing, was 33 years of age with a partner and a 14 year old girl and that he was unemployed. He had 34 previous convictions. Most of the convictions were road traffic offences. On 5th October, 2001 the applicant was convicted of assault, “threatening, abusive and insulting behaviour; hit and run; failure to remain at the scene of a road traffic accident; driving without reasonable consideration” and for that he received one month imprisonment, one month imprisonment and two fines of €63.49. He was not on bail when he committed the offence in this case.
The case put by counsel for the applicant was that he had not been convicted of any offence since he was arrested in 2004. It was also stated that he was a heroin addict.
It was further stated on behalf of the applicant that he had reached intermediate certificate level at school and on leaving school took up apprenticeship as a carpenter and that continued for a period of approximately 3½ years. At the age of 19 he began abusing drugs and that for a long period throughout his 20’s and into his early 30’s “he struggled with a heroin addiction”. Counsel for the applicant relied on the applicant’s plea of guilty, the absence of any further offences in the two years since he was arrested in 2004 and that he was registered with the relevant authorities in Bray as actively seeking work.
Particular emphasis was placed by counsel for the applicant, when addressing the learned trial Judge, that the applicant appeared to have taken steps to overcome his heroin addiction by contacting authorities at an establishment called Asheire which treats such addicts. It was stated that he may be on a waiting list but that there were a number of preconditions, 1. that the criminal proceedings would have to be behind him and 2. that he provide a urine analysis clear of drugs. It was acknowledged that he was not providing a urine analysis to anybody but he intended to address this.
Some documentation was handed in in connection with the Asheire establishment and the learned trial Judge pointed out that the pre-admission requirements were that firstly that he detoxify completely, secondly undergo drug screening, thirdly the pending criminal case would have to be resolved before a bed was offered to him, fourthly that he make contact with the establishment the following Friday and fifthly that he bring a deposit of €2,500.00 and pay the balance of fees through his account. The trial Court raised the question as to how he intended to foot the cost of any treatment at the centre.
The applicant gave evidence that the treatment would cost initially €2,500.00 and then €30.00 a week for two years. His evidence was to the effect that his mother would pay for the treatment. The learned trial Judge indicated that it was easy for someone to say that their mother was going to give them the money but the person to give such evidence was the mother herself. The learned trial Judge also indicated that he was not familiar with Asheire and its activities.
Counsel for the applicant then said “Well if the Court wishes to put it back for reasons which may be twofold, one his mother and two is information from Asheire?”, to which the learned trial Judge replied, “I would like to hear a little more about Asheire and a little more from his mother before I take, as you put it, take a chance.”
A probation report on the applicant, which had been sought at an earlier time, was before the learned trial Judge on this date but apart from a brief reference to that fact there was no other reference made to it by the learned trial Judge or counsel for the applicant on that occasion.
The sentencing of the applicant was adjourned to 26th June. Evidence had been given to the Court concerning the applicant’s co-accused, Noel Blake, who was before the Court on a similar charge plus other charges on other bills of indictment and that too was adjourned until 26th June.
On the resumed date on 26th June the trial Judge stated that he had had an opportunity to look back over his notes of the evidence in the case and to read the probation and welfare reports in relation to both the accused, that is to say, the applicant and Noel Blake. The learned trial Judge then proceeded to make reference to the charges to which the accused Noel Blake pleaded guilty other than that on which he was jointly indicted with the applicant. When he came to the indictment on foot of which the applicant and Mr. Noel Blake were jointly charged counsel for the applicant intervened in the following terms:
“Sorry to interrupt the Court at this point, Mr. Drinkwater’s mother is in Court and the Court asked that she be here to tell the Court if she is going to fund Mr. Drinkwater’s treatment in Asheire and you asked for more information about Asheire if that was available to the Court and I can tell the Court that Mrs. Drinkwater is in a financial position, I have seen a Credit Union statement, as if (sic) the Courts want to formally hear from her.”
In response the learned trial Judge said:
“No, that is not going to be necessary, I have read through everything over the weekend and this is a question of burglary at Bloomfields Shopping Centre when the Gardaí – the Gardaí had previously been at the shopping centre, two men having been seen hopping over a fence.”
He went on to make reference to the particular facts of the case. He then proceeded to sentence Noel Blake. Having done so, he then proceeded to deal with the circumstances and sentencing of the applicant. In the course of sentencing he mentioned the probation report according to which the applicant did not accept full responsibility for the offence to which he had pleaded guilty and that the Probation and Welfare Service stated that they were unable to make recommendations for further involvement with him. He proceeded to impose the sentence of two years imprisonment on the applicant.
After some discussion with counsel for Mr. Blake concerning the date from which his sentence should run having regard to the fact that he had been in custody for 10 months the learned trial Judge inquired as to what was the situation in relation to the applicant.
Counsel for the applicant then said that the applicant had come into Court and “…on your directions there is information from Asheire and his mother is in Court to say she was going to pay the €2,500.00 and the Court had indicated that the Court was thinking about taking a chance on Mr. Drinkwater.” The learned trial Judge replied, “Yes, well I have read the probation and welfare reports and the probation and welfare reports, as you know, are not hopeful.” Counsel for the applicant responded by saying that the applicant’s difficulties were centred on his addiction which he had taken some steps to address and “…that the Court gave certain directions which have been fulfilled this morning by the presence of Mrs. Drinkwater and my solicitor has the additional information that was requested and I am somewhat taken aback by the course that events have now taken, that he has gone into custody for two years … where the Court had given an indication to Mr. Drinkwater that the Court was prepared to take a chance on him and all that was required that this additional information was to be provided to the Court and the Court had the probation and welfare report and had an opportunity to consider it before giving those directions and putting the matter back to today.”
The learned trial Judge indicated that he would not vary the sentence which he had imposed.
Submissions on behalf of the applicant
The ground of appeal against sentence, which counsel for the applicant described as his primary ground, is based on the contention that the applicant, and his counsel, had a legitimate sense of grievance by reason of the failure of the trial Judge to impose a non-custodial sentence on 26th June having regard to the circumstances and purpose of adjournment of the initial hearing on sentence which took place on 15th June. The essence of counsel’s submission was that the learned trial Judge, having adjourned the initial sentencing hearing for the purpose of hearing evidence from the applicant’s mother as to her willingness to pay for any course of treatment at Asheire and further information concerning the nature of the Asheire Centre and the courses of treatment which it provided, sentenced the applicant to a term of imprisonment without hearing evidence from the mother or having any or sufficient regard to the information provided in connection with Asheire. In particular it was contended that the applicant and his Counsel had, in the circumstances, been led to believe that a non-custodial sentence would in fact be imposed once the additional sentence and information was satisfactory. This, it was submitted was such as to leave the applicant with a genuine sense of grievance, a sense of injustice. It was submitted, as a matter of law, that this Court was obliged to remove that sense of grievance, legitimately felt by the applicant, even if, and this is the important principle, the sentence itself could not be considered too severe or wrong in principle. For this proposition counsel relied on a number of United Kingdom authorities, specifically decisions of the Courts in England and Wales. He referred to Blackstone’s Criminal Practice (2006 at p.1850) which, under the heading ‘Sense of Grievance’, the principle, based on that case-law, in particular R v. Gillam 1980 2 Cr. APP. R(S) 267, was set out in the following terms:
“If the sequence of events prior to a sentence being passed, taken in conjunction with the actual sentence, leaves the offender with a justifiable sense of grievance, then the court of appeal would feel obliged to remove that sense of grievance, notwithstanding that the sentence is not in itself too severe. The principle has been applied especially in the context of the lower Court ordering reports and thereby raising in the offender’s mind an expectation that, if the reports are satisfactory, he will be dealt with by non-custodial means. If the reports are good but the Court nonetheless passes a custodial sentence, the court of appeal will intervene. However, it is necessary to show that the offender’s hopes of a non-custodial sentence were legitimately raised. Thus, if the Court, on adjourning for reports, made it clear that it was making no promises as to the eventual outcome, the eventual sentencer is at liberty to ignore a recommendation in the report for a non-custodial sentence, and the court of appeal will concern itself solely with whether the sentence passed was appropriate in all the circumstances.”
Among the English authorities referred to by Counsel for the Plaintiff was R –v- Millwood 1982 4 Cr. App. R (S) 281. In that case the English Court summed up the policy which it felt it was appropriate to follow in the circumstances of the case before it in the following terms –
“Where a Court decides to request a report upon an offender’s suitability for community service thereby creates in the offender’s mind the expectation of a community service order if the report is favourable. If the report proved to be favourable then such an order is recommended the Court ought to act upon it.”
The effect of the English authorities is that a custodial sentence imposed in such circumstances, even if otherwise appropriate to the offence, should be set aside in order to remove the offender’s sense of grievance. The English authorities essentially referred to cases where the sentencing Court had made a clear statement that a community service order would be made on receipt of a satisfactory probation report and the sentencing was adjourned soley or mainly for that purpose.
Broadly speaking the duty of a Judge in this country when sentencing an offender is to impose a sentence whether custodial or otherwise, which is fair and proportionate to the offence having regard to its gravity (which includes its impact on any victim) and the circumstances of the accused including any mitigating factors.
Where the offender appeals against the sentence imposed by the trial Judge it is well settled law that this Court will not interfere with the sentence imposed unless it finds that the trial Judge erred in principle when imposing that sentence. That summarises the jurisdiction of this Court on appeals by offenders against severity of sentence.
The D.P.P. may also, of course, apply to this Court for the purpose of having the said sentence reviewed and increased on the grounds that it was unduly lenient. The position initially adopted by the D.P.P. in this case was to accept that the policy expressed in the English cases referred to should be followed here but seemed to retreat from that position when asked if that would mean that a custodial sentence imposed for a serious offence such as rape or sexual assault should always be set aside in order to eliminate the offender’s sense of grievance if at some point he had been led to believe that a non-custodial or lesser sentence might be imposed even though the actual sentence imposed was correct in principle. The D.P.P. also did not seem to feel that the policy referred to should apply in a case where the D.P.P. had in any event appealed on the ground that the sentence was unduly lenient. In this context that could arise where an offender had been led to believe that he would get a non-custodial sentence but in the event received a sentence of six or twelve months imprisonment which the D.P.P. sought to review before this Court on the grounds of undue leniency. In the end it was not quite clear where the D.P.P. stood on this issue which was not altogether helpful to the Court.
While the sentencing of offenders is governed by a range of legal principles, some of which have already been referred to by the Court, it may also be influenced by policy considerations such as the prevalence of a particular kind of offence, generally or locally and the need to deter it, or the special gravity which should be attached to an offence as indicated by the Oireachtas by way of statute. In short there may be societal factors to be taken into account when sentencing for a particular offence as well as general principles of law. Needless to say such societal factors are indigenous. In England and Wales there is a statutory body which sets out sentencing guidelines which may or may not include a range of societal considerations such as, perhaps, the need to favour non-custodial sentences where at all reasonably possible in order to avoid prison overcrowding. There may be a need to avoid the mischief of one Judge or Court giving an offender reason to believe that the ultimate sentence would be non-custodial only to find that at the end of the process he is being dealt with by a different Judge or a differently composed Court which imposes a custodial sentence. That happened in at least two of the English cases referred to by Counsel for the applicant and the involvement of different Judges or courts in the same sentencing process is something which would rarely arise in this country and then only in very exceptional circumstances. The foregoing observations are made for the limited but important purpose of stating that one must be wary of transposing sentencing policy of one country to another country.
Turning to the merits of the question raised, that concerns a legitimate grievance which it is submitted an offender may harbour if an earlier promise, expressed or implied, made by the sentencing Judge to impose a non-custodial sentence is not respected at an adjourned hearing, but a custodial sentence imposed instead. For this purpose it was submitted that where, in the course of sentencing, a Judge makes an express statement that a non-custodial sentence will be imposed if, at an adjourned sentence hearing, certain conditions are fulfilled, but nonetheless , notwithstanding the fulfilment of those conditions, imposes a custodial sentence at the adjourned hearing, then that custodial sentence should be set aside on appeal in favour of the non-custodial one in order to alleviate the offender’s sense of grievance. This, it was submitted, is the policy that should apply in all such cases, including this case, even if the sentence actually imposed is proportionate to the gravity of the offence and is otherwise correct in principle.
It would undoubtedly be very unsatisfactory should a Judge in the course of a sentencing process, having considered all the relevant facts then available to him, adjourn final sentencing pending the availability of such a matter as a probation officer’s report, with the declared intention that he or she would impose a non-custodial sentence in the event of the report being satisfactory but nonetheless imposed, at the adjourned hearing, a custodial sentence notwithstanding a satisfactory report. It may well be in this hypothetical case that a Judge on further reflection concluded that a custodial sentence was the only proper sentence that should be imposed notwithstanding a satisfactory probation officer’s report. In all probability the offender would have a legitimate sense of grievance of the manner in which the Judge had approached the sentencing.
According to Counsel for the applicant in such a case the offender may then appeal and expect his sentence to be set aside in all such cases, not because it was wrong in principle, but because he should be spared his sense of grievance at the manner in which the trial Judge dealt with it.
The Court does not consider that it would be sound either in principle or policy to treat the offenders “sense of grievance” as the sole and determinative factor in such an appeal.
Prosecutions are brought in pursuit of the public interest and the maintenance of the rule of law so that when the prosecution proves its case criminals are convicted and duly sentenced in accordance with law. While it might be inexact to refer to a public sense of grievance the fact is that when a person commits a criminal offence he or she has committed an offence against society, sometimes of the gravest nature, and they have full responsibility for finding themselves convicted before the Courts. That is one reason why public policy and the law requires the punishment of offenders according to the circumstances of each case. Victims and the public generally also have a legitimate expectation that those who have been convicted of a criminal offence should be subject to judicially imposed sentence, which may be a custodial sentence, as is appropriate for the crime, its gravity and the circumstances of the case. That is the task of the Judge who imposes sentence and this Court, in an appeal, thus confines itself to considering whether the sentencing Court erred in principle as regards the sentence imposed. In the view of the Court it would be wrong and disproportionate to allow a criminal offender’s sense of grievance in the sense referred to above to outweigh all these other considerations in every case.
Certainly, if a trial Judge in the course of the sentencing process, having considered all the circumstances of the case then before him, expressed a definite view that a non-custodial sentence would be imposed if certain conditions were fulfilled, such as the availability of a satisfactory probation report, but yet proceeded ultimately on quite a different basis and imposed a custodial sentence that would be a factor which this Court would be entitled to take into account in determining whether, in all the circumstances of the case, the sentence imposed was excessive or wrong in principle. In a case where this Court considered that the non-custodial sentence as originally and expressly envisaged would not have been wrong in principle or unduly lenient the offender’s legitimate sense of grievance at the manner in which he was sentenced could be considered as a ground for considering the custodial sentence as excessive or wrong in principle in all the circumstances.
The Court feels it should add that as a general rule all parties to sentencing hearing should bear in mind that a sentence is not final until the trial Judge has pronounced his or her final determination. Even then it may not be final in the sense that the Director of Public Prosecutions may have that sentence set aside in a successful application to this Court on the grounds of undue leniency. Furthermore in the course of the sentencing process a trial Judge, having heard the evidence offered but concerned that additional evidence should be adduced or wishing to give further consideration to what sentence should be imposed, may adjourn the making of his or her final order on sentence while leaving open a range of options as to what form the sentence may take. As already indicated, this, the parties should assume as being generally the position in the absence of a clear and unambiguous statement to the contrary by the sentencing Judge.
Although it should not be strictly necessary, it would be good practice, in order to minimise the risk of any misunderstanding if the sentencing Judge, when adjourning the question of sentence, was to state that the actual form or nature of the sentence is not yet decided and will not be so decided until the final hearing on sentence.
Circumstances of the Present Case
The next question is whether the applicant has shown that in this case it is legitimate for him to feel a sense of grievance, in the light of the sentencing procedure followed by the trial Judge, which this Court should take into account in deciding this application. To recall, the applicant, for the purpose of establishing that he had a legitimate sense of grievance, claims that what the trial Judge said must be interpreted as clearly stating that he would not impose a custodial sentence if the applicant simply provided proof from his mother that she would pay for his detoxification programme and further information on the Asheire Centre.
It was submitted on behalf of the D.P.P. that the trial Judge’s approach to sentencing and the words which he used could not be interpreted as an express or implied promise that the applicant would receive a non-custodial sentence on the basis of pursuing a residential course in the institution known as Asheire. In substance it was submitted on behalf of the D.P.P. that not only had the applicant not discharged an onus of proof on him to establish that he had a legitimate sense of grievance at the final sentence imposed by the trial Judge but that any reasonable construction of the trial Judge’s words were that he had not yet made up his mind finally on the course of action which he was going to take.
Counsel for the applicant submitted that the trial Judge, following submissions from the applicant’s Counsel that he receive a chance, clearly stated that he would like the further information on Asheire and hear from the applicant’s mother before he would “take a chance” and not before he would ‘consider taking a chance’. On this basis the applicant, it was asserted, was entitled to understand or expect that he would receive a non-custodial sentence. The fact that this did not happen left him, it was submitted, with a legitimate sense of grievance.
This matter falls to be considered in the context of the sentencing hearings as a whole that is to say the transcript of 15th June 2006 when the case was part heard and adjourned and 26th June 2006 when the final order was made.
At the hearing of 15th June 2006 the trial Judge first of all heard Garda evidence concerning the circumstances of the burglary offence and background information on the applicant including that he had 34 previous convictions. There followed a plea of mitigation on behalf of the applicant in the course of which Counsel pointed out, inter alia, that most of the applicant’s previous convictions were road traffic convictions and that he had not re-offended since June 2004. He went on to say that the applicant “had taken steps to engage with authorities in Asheire although he was not in a position to fulfil at least one of the pre-conditions for receiving treatment in Asheire that is to say to provide a drug free urine analysis but this was something which he was going to have to address. He wanted to ask the Court to give the applicant a chance or to “take a chance” on the basis that he would enter a detoxing programme in Asheire.” It was at this point that the trial Judge pointed out to the applicant’s Counsel the pre-admission requirements of Asheire namely (a) that detoxification be completed, (b) that he undergo drugs screening, (c) that the court case needs to be resolved before accommodation is offered (d) that he ring the following Friday and (d) on admission he bring a deposit of €2,500 and pay the balance through his account. He then raised the question with Counsel as to whether he wished to say anything about how the accused was going to finance this in any case. Counsel for the applicant, it will be recalled, responded by saying he could call the applicant who then gave evidence that his mother would pay the deposit amount and the amount of €30 per week for two years. He gave evidence that he was not estranged from his parents and that they were prepared to support him. The Judge then observed that the person who should really be telling him about how any programme was going to be financed was the mother herself whom he was then informed was on holidays. The Judge then indicated that he would have to know whether the mother was going to pay. He also stated that he was not familiar with the Asheire Centre. Counsel for the applicant at that point stated “Well if the Court wishes to put it back for reasons which may be twofold, (1) his mother and (2) his information from Asheire?” To which the Judge replied “I’d like to hear a little more about Asheire and a little more from his mother before I take, as you put it, a chance. The learned trial Judge then proceeded to adjourn the sentence hearing in the applicant’s case along with that of his co-accused to June 26th.
It is quite clear that from the course of the hearing on June 15th that the sentencing process in which the Judge was engaged was far from complete when he adjourned it and that it cannot be inferred that the phraseology used by the Judge either taken on its own, or particularly in its overall context, amounted to a definitive statement that he was going to impose a non-custodial sentence simply if the applicant could satisfy him that he could pay for the course at Asheire and provide some unspecified additional information on Asheire. He did not, of course, exclude that possibility. Indeed the words of Counsel for the applicant at the resumed hearing on June 26, when he sought to take issue with a custodial sentence being imposed by the trial Judge were “Well Mr. Drinkwater came into court, Judge, and on your directions there is information from Asherie and his mother is in court to say that she is going to pay €2,500 and the Court indicated that the Court was thinking about taking a chance on Mr. Drinkwater.” (emphasis added). Undoubtedly the Judge at the point of adjournment had not excluded the possibility of a non-custodial sentence from his thoughts but it has not in any sense been established by the applicant that the trial Judge had stated he would definitely approach it on that basis. Moreover, the question of interrupting and adjourning the sentencing process first arose at the suggestion of Counsel for the applicant after the Judge had queried the soundness of Counsel’s grounds in favour of a lenient sentence and it was really on that narrow aspect of the case that the matter was adjourned. At that point the applicant’s probation report had not been referred to in any detail although it was before the Court.
Counsel for the applicant had himself earlier adverted to the fact that even if the money was available the applicant would have to satisfy the pre-conditions laid down by Ashiere for entry on the course and in particular provide a drug free urine sample. These issues were also raised and pointed out to him by the trial Judge. There was no evidence put before the sentencing Court at any stage that the applicant was in a position to fulfil that and the other stringent pre-conditions for being admitted to Asheire, other than the payment of the fees, and it was unreal for the applicant to treat the Judge’s words as a definitive decision to impose a suspended sentence on the basis only of the applicant providing the evidence that his mother would pay for the course and some further information about the role of Asheire as an institution. The whole question as to whether he could in any event be admitted at all to Asheire had not been addressed by the defence. Consequently it is clear that, apart from considering matters in their totality, the trial Judge would have to have been satisfied on a number of matters before he came to a firm decision on the form of the sentence, which he clearly had not and could not have been at the time when the sentencing hearing was adjourned to June 26th.
On the resumption of the sentencing hearing on June 26th undoubtedly the applicant and his Counsel may have carried a hope that they might be able to persuade the trial Judge to take the lenient course. That is what convicted persons often hope and in this case there was perhaps some basis for such a hope in the light of what the trial Judge had said but no more than that. At the resumed hearing the sentencing process had moved on and the sentencing Judge went on to make specific reference to the probationary report that had been prepared in respect of the applicant, the effect of which has been referred to above, and clearly concluded that in the light of the negative nature of that report that relying on the applicant, to voluntarily pursue a course of treatment was not a reasonable option for him to adopt having regard to the record of the accused and the offence for which he was convicted and his history of drug addiction. That he was entitled to do. If the trial Judge had not been so quick to allow Counsel for the applicant to mend his hand, so to speak, as regards the point he was making at the time concerning the payment of fees, and considered fully the probationary report at that time, even though he obviously had a busy list, he might well have avoided the necessity for an adjournment but that is the most for which the learned trial Judge could be criticised. It does not, in the view of the Court, affect the principles upon which the learned trial Judge sentenced the applicant nor could it be said to have given rise to a legitimate sense of grievance of the kind alleged. In short the applicant has not established any basis from which this Court could conclude that he had a legitimate sense of grievance for receiving a custodial sentence.
In sentencing the applicant the learned trial Judge had regard to all the matters which he was required to have regard namely the nature of the offence, the circumstances of the accused and the mitigating factors in his favour. He has not been criticised in that respect in this appeal.
Being satisfied that the applicant has not established that he is entitled to claim a legitimate sense of grievance arising from the failure of the trial Judge to impose a non-custodial sentence that question does not further arise for consideration by the Court.
Having regard to the nature of the offence, the circumstances of the accused including his previous convictions and the mitigating circumstances, all of which were taken into account by the trial Judge, the Court is satisfied that the sentence imposed was not excessive and it involved no error of principle.
Accordingly, this application being treated as the appeal, the appeal is dismissed.