Offences Against Persons
Cases
DPP v Fitzgibbon
[2014] IECCA 12
Composition of Court: Clarke J., Birmingham J., Sheehan J.
Judgment by: Clarke J.
Status of Judgment: Approved
Judgments by
Link to Judgment
Result
Clarke J.
Link
Error in principle in sentence
Outcome: Error in principle in sentence
THE COURT OF CRIMINAL APPEAL
[Record No: CCA 2/2012]
Clarke J.
Birmingham J.
Sheehan J.
Between/
The People at the Suit of the Director of Public Prosecutions
Prosecutor/Respondent
and
Adam Fitzgibbon
Accused/Appellant
Judgment of the Court delivered by Mr. Justice Clarke on the 18th March, 2014.
1. Introduction
1.1 On the 23rd July, 2010, a truly horrific assault occurred. The Court has had the difficult task of having to view a CCTV recording of the assault, for it took place at an Applegreen service station in Corbally, Co. Clare in full view of the cameras. The victim, Kevin Meaney, was aged 16 at the time of the assault. In the written submissions filed on behalf of the accused/appellant (“Adam Fitzgibbon”), counsel correctly described the assault as “unprovoked, sustained and vicious”. It was certainly that and more.
1.2. On the 10th October, 2011, Adam Fitzgibbon pleaded guilty to a charge of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997 (“section 4”) (“the 1997 Act”). Some weeks later, on the 21st November, 2011, he was sentenced by Carney J. to a term of 15 years imprisonment with the final 3 years suspended. Adam Fitzgibbon has appealed to this Court against the severity of that sentence.
1.3. In fairness to counsel for Adam Fitzgibbon, it should be emphasised that no attempt was made to minimise or reduce the seriousness of the offence itself. Rather, counsel based his argument on two broad propositions. First, it was said that, notwithstanding the horrific nature of the assault, the sentence imposed is materially out of line with sentences imposed for other comparable assaults causing serious harm. Second, it is said that the sentencing judge, in assessing mitigating and other factors associated with the offence, misinterpreted a number of decisions of this Court and thereby fell into the error of giving, inappropriately it was said, little or no weight to factors which should have been properly taken into account.
1.4. Against the background of that general description, it is next necessary to turn to the circumstances of the offence.
2. How the Offence Occurred
2.1. On the evening of the offence, Adam Fitzgibbon was under the care of two workers from the HSE who had arranged to collect him from the city centre of Limerick. The evidence was that when he was picked up he appeared to be under the influence of drink and drugs, was agitated and was hyperactive. Adam Fitzgibbon was being brought back to a residential home. As he was being driven back to that home, Eden Villa, Adam Fitzgibbon told the care workers that he was “looking for someone”. As the car approached the Applegreen service station, Adam Fitzgibbon shouted to the driver to pull in and, just as the car was parked, got out saying “you have no idea what I am capable of”. He then walked towards his victim who was sitting on a window sill outside of a pharmacy at the filling station.
2.2. Adam Fitzgibbon then launched what the Court considers was correctly characterised by counsel for the prosecution as a vicious and frenzied attack on his victim involving 26 punches to the head, 65 stamps on the head and 2 stamps to the chest. The attack lasted over 4 minutes during which time the victim was for the most part lying motionless on the ground and offering no resistance. One witness (there were 11 in all, including the 2 care workers) indicated that Adam Fitzgibbon had said that the victim “had got my friend 35 years, the scumbag c..t”.
2.3. Having been arrested and, in the course of being brought to a garda station, Adam Fitzgibbon said that he “beat the head off him, danced over his head, I beat him all over the place, I will batter them all”. Adam Fitzgibbon also said that the victim “got my friend locked up for life”.
2.4. In the garda station, it would appear that Adam Fitzgibbon characterised the attack as “throwing a few digs and kicks”. He also said that he was “stoned out of his head on vodka and tablets”. On arrest for the purpose of charge, he did, however, say that he was sorry.
2.5. On arraignment on the 10th October, 2011, he entered a plea of guilty. It is next necessary to turn to the circumstances of Adam Fitzgibbon on which reliance was placed on his behalf, both before the sentencing court and this Court.
3. Adam Fitzgibbon’s Circumstances
3.1. That Adam Fitzgibbon has had a highly unfortunate upbringing cannot be doubted. Amongst the materials available at his sentencing hearing was a report of Dr. Kevin Lambe which, in succinct terms, summarised Adam Fitzgibbon’s difficulties at paragraph 14.3 in the following terms:-
“A multivariate analysis of the situation that has led to this terrible outcome for Adam and his victim suggests there has been no singular cause. Rather it is the composition of his life experiences to date – less than ideal factors from infancy; unavailable parents; ineffective parenting strategies; multiple disruptions in relation to his sense of home; a father who was coming and going in his life; difficult father-son relationship; problems at school from primary level; undiagnosed learning disability; ineffective identification of specific learning difficulties; early drug use; association with older peer group; involvement in petty criminal activity; expulsion from school; psychoactive drug dependence; alcohol abuse; conflict orientated and defensive in interpersonal relations; acceptability of violence in peer group; absence of life goals and planning; and, situational variables in relation to group rivalries.”
3.2. Dr. Lambe also noted that Adam Fitzgibbon did not wish to think about the fact that he had very nearly killed Kevin Meaney. Dr. Lambe quoted Adam Fitzgibbon as saying: “I’m thankful he didn’t die. I am very sorry for my actions now but I am not sorry I am locked up”.
3.3. It is also important to note that Adam Fitzgibbon was, himself, 17 years of age at the time of the offence.
3.4. Finally, before going on to consider the ruling of the sentencing judge, it is important to note the very serious consequences of the assault on both Kevin Meaney and his family.
4. The Impact on Kevin Meaney and his Family
4.1 The effects on Kevin Meaney are set out in a medical report by Dr. Susan Finn of the National Rehabilitation Hospital. She noted that, on admission to hospital following the attack, his score on the Glasgow Coma Scale was 7, compared to a normal score of 15. He required intubation and ventilation for a period of 8 days. His score on the Glasgow Coma Scale had risen to 11 at the end of this intubation period. Brain scans demonstrated that he had suffered a left sided subdural haematoma and right sided fracture of the orbit.
4.2 Dr. Finn went on to note the longer term effects on Kevin Meaney. These include a “definite disimprovement in his short term memory” resulting in poorer academic performance, “difficulty with small buttons and jewellery clasps”, and “frustrated outbursts” associated with brain injury. His most significant difficulty is described as lethargy, requiring lifts to and from various places and going to bed earlier than boys of his age. She finally noted that the “possible implications of his brain injury may not yet be obvious”.
4.3 In the Victim Impact Statement prepared by his family, his mother recounted feeling “physically sick at the sight of him” on first coming upon him at the forecourt and the devastating effect the scene had on other members of the family who arrived soon afterwards. She also talked of their worries and fears over the next week while her son was placed on a life support machine and the logistical difficulties posed by his transfer to the National Rehabilitation Hospital in Dublin.
4.4 It is her opinion that Kevin Meaney’s speech has been badly affected, making him more difficult to understand, as has his handwriting, which is considerably slower. His ability to participate in sporting activities has been significantly affected because of problems with balance and co-ordination and concerns in relation to the consequences of a possible further blow to the head. She also confirmed the ongoing difficulties with memory and fatigue noted by Dr. Finn. A reduced ability to interact with others since the attack was also noted. Concerns exist about his ability to drive, should he wish to do so, his ability to work in many trades which require co-ordination, and his ability to pursue further academic study after his leaving certificate. Kevin Meaney is said to have no memory of the assault.
4.5 The house in which the family had lived for the previous sixteen years was deemed unsuitable for Kevin Meaney’s increased needs, necessitating a move. His need for care required his mother to remain out of work and these factors combined to cause financial hardship for the family. The report describes the family as being in agreement that “the brother and son we knew and loved before the attack was just not the same afterwards”.
5. The Trial Judge’s Reasons
5.1 Prior to delivering his ruling on sentence, Carney J. decided to play the CCTV footage of the incident as an explanatory aid to the sentence he then went on to deliver. It should be confirmed that this Court has also viewed that footage in private. In his ruling, Carney J. first held that the influence of drink and drugs “affords no defence but also no mitigation in one’s responsibility to society” citing an earlier ruling of Murray C.J. This reference appears to be to Director of Public Prosecutions v Keane [2008] 3 IR 177. Next, the trial judge noted the range of punishments available for this offence, being from suspended sentence to life imprisonment. He went on to say:
“I take account of 1) the unprovoked nature of the attack; 2) the ferocity of the attack; 3) the sustained nature of the attack; 4) the fact that only the intervention of a third party saved Kevin Meaney from worse; 5) the nature of the injuries inflicted; and 6) the effects on the victim and his family.”
Bearing all of these factors in mind, the sentencing judge assessed the assault as meriting a sentence of 15 years imprisonment.
5.2 Carney J. then turned to the accused’s dysfunctional background. He noted that, according to the ruling of Geoghegan J. in Director of Public Prosecutions v Stafford [2008] IECCA 15, “this affords little, if any, mitigation”. The mitigating factors the judge expressly refers to are:
“1) the accused’s plea of guilty; 2) the accused’s lack of previous convictions prior to the date of the instant offence; 3) the age of the accused and my obligation to provide him with a tunnel of hope for the future and rehabilitation.”
Taking these factors into account, the trial judge suspended the final three years of Adam Fitzgibbon’s sentence on condition that he enter a bond in the sum of €1,000 to stay away from the victim and his family in perpetuity.
6. The Basis of the Appeal
6.1. While a range of issues were canvassed in the initial written submissions filed on behalf of Adam Fitzgibbon, a further document entitled “Summary of Errors in Principle” was filed. I think it would be fair to characterise the focus of the case made on his behalf by counsel at the appeal, while not abandoning any of the other points made in the initial written submissions, as concentrating on that document and, thus, on three specific factors. First, counsel analysed a number of decisions of this Court in which the question of the appropriate sentence for very serious assaults was considered. On the basis of that analysis, counsel suggested that, even allowing for what was accepted to be the horrific nature of the assault in this case, the overall approach of the trial judge was inconsistent with the general run of sentences imposed for similar offences.
6.2. Thereafter, counsel concentrated on what were said to be two errors of principle in the approach of the trial judge. As noted, the trial judge, placing reliance on Stafford, took the view that Adam Fitzgibbon’s background provided “little, if any, mitigation”. Likewise, it is clear that the trial judge took the view that the decision in Keane required that the influence of drink and drugs afforded “no mitigation in one’s responsibility to society”.
6.3. It was argued that the trial judge had misinterpreted both of those judgments in the sense that the trial judge had taken the view that there were no circumstances in which a dysfunctional background, coupled with the influence of drink and drugs, could amount to significant mitigation. It is clear that the trial judge did not, in fact, place any material reliance on those factors as mitigation in considering the appropriate sentence. The suspension of the final three years of the sentence was stated by the trial judge to have been to take account of the plea of guilty, the lack of previous convictions and the undoubted obligation of the trial judge to provide what he described as a tunnel of hope for future rehabilitation in the particular context of the age of Adam Fitzgibbon at the time of committing the offence. In passing, it should be noted that, in the original written submissions filed on behalf of Adam Fitzgibbon, it had been suggested that the trial judge had failed to adequately reflect those factors in the ultimate sentence imposed. The Court does not consider that a suspension of three years of the fifteen year sentence would be an inappropriate reflection of those factors, taken by themselves, and provided that no other significant mitigation factors were present.
6.4. It appears, therefore, that the issues which arise on this appeal can conveniently be grouped into three. The first is the analysis of sentences for serious assaults, particularly those scrutinised by this Court, and the question of whether the sentence in this case is broadly in line with other such sentences. The second are what are said to be the errors of the trial judge in failing to treat the combined effect of the Adam Fitzgibbon’s background together with drink and drugs (those being said, on the facts of his case, to be at least materially interconnected) as mitigating factors. The third set of issues are those subsidiary points raised in the original written submissions which, of course, would only fall to be decided if the appeal on the two main sets of grounds just noted were to fail. The Court will turn first to certain observations on the overall approach to sentencing.
7. Sentencing Hearings and Appeals – The Proper Approach
7.1. The Court would wish to start by addressing some general principles. In a judgment also delivered today, Director of Public Prosecutions v. Kieran Ryan, a differently (in part) constituted formation of this Court set out certain general principles applicable to the proper approach of the Court in assessing sentence prior to the adjustment, if appropriate, of the relevant sentence to reflect any mitigating factors. On the facts of that case, a detailed analysis was engaged in of the appropriate ranges of sentences to be imposed in respect of the possession of firearms in suspicious circumstances. In addition, the factors which were likely to properly influence the placing of a particular offence along the relevant scale were identified. This Court agrees with the broad approach adopted in Ryan and proposes, insofar as it is possible, to engage in a similar exercise in this case.
7.2. As pointed in Ryan, it is only appropriate for this Court to seek to give guidance on the range of appropriate sentences in circumstances where the Court has available to it sufficient materials to enable it to make an appropriate assessment. It also follows that the extent to which guidance can be given may be dependent on the adequacy of such information and the degree to which it can be regarded as comprehensive. As will become clear, this Court in this case did not have the same degree of information available to it as the Court dealing with Ryan and, thus, the guidance given in this judgment must, necessarily, be more tentative.
7.3 It does also need to be emphasised that a sentencing judge should set out clearly the factors which have been taken into account in arriving at an appropriate sentence and specify the approach adopted in coming to a conclusion as to the appropriate sentence having regard to all of those factors. The Constitution and the law provides both for sentencing by trial judges and an appeal against sentence available to both prosecution and defence. In the case of serious offences tried on indictment, that appeal is to this Court. In order for this Court to exercise its proper constitutional role in reviewing sentences which are challenged, this Court does need the maximum possible clarity as to how the sentencing judge reached a conclusion as to the appropriate sentence to be imposed in all the circumstances of the case. There is no one way in which this needs necessarily to be done. There is no requirement for a sentencing to stick slavishly to any particular method or formula. It is, however, important that this Court, when asked to review a sentence, is not left to guess or infer, to any impermissible extent, what the reasoning of the sentencing judge was. It is to be hoped that the greater assistance from both prosecution and defence to a sentencing judge which this Court has suggested is appropriate, in a further decision delivered by this Court today in Director of Public Prosecutions v. Z, can also enable sentencing judges to specify in clear terms how the sentence in question was arrived at.
7.4 Against that background, I now turn to an analysis of the sentencing cases relied on by counsel.
8. Sentences for Serious Assaults
8.1. In Director of Public Prosecutions v. James Osborne (Unreported, Court of Criminal Appeal, 29th May 2003), this Court heard an application for leave to appeal against a sentence of 8½ years imposed by the Dublin Circuit Criminal Court on a plea of guilty to an offence of assault causing serious harm contrary to section 4. There was one difficulty at the sentencing hearing in that case in relation to identifying the precise circumstances of the offence for there were conflicting accounts which could not fully be reconciled. There is, of course, no such difficulty in this case. Be that as it may, the sentencing judge accepted that the accused may have been under an initial misapprehension on coming on the scene of an event. However, by the time the serious assault which was at the heart of that case occurred, the sentencing judge was satisfied that the accused could have been under no misapprehension but that the victim was an innocent party. The assault was particularly serious and caused the victim to suffer from significant permanent disability. There was some debate in that case about potential comparison between sentences for serious assaults and those for manslaughter. In that context, Geoghegan J., who delivered the judgment of this Court, said the following, at page 11:-
“The sentence appropriate to the permanent destruction of a young man’s life may not necessarily in all circumstances be less than the sentence which would have been appropriate for manslaughter if death had resulted from the same crime.”
The sentence of 8½ years was upheld.
8.2. In Director of Public Prosecutions v. Hogan (Unreported, Court of Criminal Appeal, 28th April 2003) this Court had to consider an application for leave to appeal against a sentence of 12 years in respect of assault causing serious harm contrary to section 4. The case involved the accused bursting in on the victim in the victim’s dwelling house with such force that the door burst from its hinges. The victim was stabbed multiple times with a Stanley knife including a significant mark being cut into his back. The assault required 99 stitches. It is also clear from reading the judgment of this Court, delivered by Hardiman J., that the Court agreed with the sentencing judge that there were no mitigating factors of any substance. As the Court pointed out having reviewed the factors urged, “none of these factors constitute any form of adequate or significant mitigation”. The Court noted that the sentence was a long one but not one which was unjustified in all the circumstances of the case.
8.3. More recently, this Court has considered this offence in Director of Public Prosecutions v McMahon [2011] IECCA 94 in the context of an offender who by reason of mental illness posed a serious risk of harm to others. In that case, the accused, following a discussion as to the continuing need to take certain medication, stabbed his treating consultant psychiatrist a total of eight times on various parts of his body. He then stabbed another doctor who had responded to the commotion. The stab wounds caused a life-threatening haemorrhage in his treating consultant, who as result of the attack, suffered from a severe form of Post Traumatic Stress Disorder with superimposed depression. The wounds to the responding doctor could also have been life-threatening. The accused in this case was charged with assault causing serious harm contrary to section 4 in respect of the attack on his treating psychiatrist and assault causing harm (s. 3 of the 1997 Act) in respect to his actions relating to the responding doctor. Amongst the relevant factors were the facts that the accused had a previous conviction for manslaughter, and had been released from prison eight months prior to the offences. He pleaded guilty and was sentenced to 10 years imprisonment for the s. 4 offence, and three years on the s. 3 offence to run concurrently. These sentences were not backdated to take into account time spent in custody, which in effect meant a sentence of over 11 years. The DPP appealed on the grounds of undue leniency, arguing that the threat which the accused posed to society necessitated a life sentence. It is noteworthy for present purposes that the Court of Criminal Appeal, at p. 13 of its judgment, stated:-
“On this appeal the Director of Public Prosecutions did not argue that the sentence imposed was outside the permissible range of sentences for what might be described, however inaccurately, as an ordinary offender who committed an offence contrary to s.4 of the 1997 Act shortly after serving a prison sentence for manslaughter. This Court considers that the sentence imposed was at the lower end of that spectrum, and that a heavier sentence could have been imposed.”
8.4 Director of Public Prosecutions v Gavin Cahill [2008] IECCA 84 again concerned an undue leniency application in respect of a section 4 conviction. Here, the accused, during an unprovoked attack, lunged at his victim with a six inch blade causing a very severe injury. The medical report in the case confirmed that the injuries sustained were life-threatening and that the victim required emergency procedures on admission to hospital. Mr. Cahill had a number of previous convictions, some for similar offences. He was initially sentenced to three years imprisonment with two years of that sentence suspended. On appeal, this was increased to eight years imprisonment with the final three years suspended.
8.5 In Director of Public Prosecutions v Anthony McDonagh [2010] IECCA 127, the accused was charged and convicted of three counts in relation to a shooting incident – possession of a firearm with intent to endanger life contrary to s. 15(a) of the Firearms Act, 1925, as substituted and inserted by s. 43 of the Criminal Justice Act 2006, and as amended by s. 35 of the Criminal Justice Act 2007, possession of a firearm with intent to endanger life contrary to s. 15(a) of the Firearms Act 1925, as amended, and assault causing serious harm contrary to section 4. He was sentenced to 12 years imprisonment on each count, all to run concurrently. However, the aggravating factor of possession of a firearm was present in that case.
8.6. In Thomas O’Malley, Sentencing Law and Practice (2nd ed., 2006), the author also notes in Chapter 16 the decision in Director of Public Prosecutions v O’Brien (Unreported, Central Criminal Court, 28th April 2003) where a man who left his victim brain-damaged following an attack, necessitating full-time care, was sentenced to eight years imprisonment with the final two years suspended.
8.7. The cases reviewed all involve serious assaults. All also involve serious consequences for the victim. All could be said to be, to a greater or lesser extent, at the upper end of the range. As noted by the sentencing judge in this case, the range of sentences available to a judge for this section 4 offence include anything from a suspended sentence to life imprisonment. When faced with such a broad range, it is important that some attempt be made to identify both the factors which are properly taken into account when determining the severity of the offence and the culpability of the accused, and also that guidance be offered on the appropriate ranges of sentence (depending on the severity of the offence in question). As with all criminal offences, the primary focus must be on the extent of wrongdoing and culpability on the part of the accused.
8.8 It is true that the criminal law does have regard to consequences in distinguishing connected criminal offences. For example, murder is distinguished from attempted murder even though the reason why the intended victim was not killed may have nothing to do with the blameworthiness of the culprit. Likewise, the variety of offences involving assault are categorised by reference to the harm done. However, notwithstanding that characterisation, the primary focus must remain on the actions of the guilty party. In the context of section 4 offences, it must, of course, be acknowledged that, in order for such an offence to be committed, serious harm must be caused. In the vast majority of cases that serious harm will be at least a possible or predictable outcome of the assault. Even where the consequences might be somewhat more severe than might have been predicted in the light of the nature of the assault concerned, it will not ordinarily lie in the mouth of a person guilty of assault to place too great reliance on the fact that the consequences were more severe than might have been reasonably predicted. To a significant extent those who commit significant assaults take a chance on the consequences. However, there will always be cases where the unfortunate consequences of an assault are wholly disproportionate to the severity of the relevant assault and, thus, the blameworthiness of the guilty party. For those, or other unusual reasons, there will always be cases where, even without significant mitigation, and notwithstanding the serious consequences of the relevant assault, a non-custodial sentence would still be the appropriate starting point.
8.9 In attempting to give some guidance in respect of offences at the lower end of the range, it should be acknowledged that the authorities to which counsel referred this Court concerned, for obvious reasons, by and large offences towards the upper end of the range. Any guidance given in respect of the lower end of the range must, therefore, be somewhat tentative and will, necessarily, be open to review as further experience and materials become available.
8.10 However, in the absence of such unusual factors, a sentence of between 2 and 4 years would seem appropriate, before any mitigating factors are taken into account, for offences at the lower end of the range. A middle range carrying a sentence of between 4 and 7½ years would also seem appropriate. In the light of the authorities to which counsel referred, and which have been analysed in the course of this judgment, it seems that the appropriate range for offences of the most serious type would be a sentence of 7½ to 12½ years. It must, in addition, be acknowledged that there may be cases which, because of their exceptional nature, would warrant, without mitigation, a sentence above 12½ years up to and including, in wholly exceptional cases, the maximum sentence of life imprisonment. (For an analysis of the circumstances in which the maximum sentence may be imposed, see again the judgment of this Court in Director of Public Prosecutions v. Z.)
8.11 It must be emphasised that there may always be special or unusual factors which properly influence the assessment by a sentencing judge of the severity of an offence and the culpability of the offender on the facts of any individual case. The analysis which follows should not, therefore, be taken as in any way excluding the entitlement of and, indeed, requirement on a sentencing judge to take into account any factor which may be material in the legitimate consideration of how to characterise offences of this type by reference to their severity and the culpability of the accused. That being said, it seems to this Court that there are a number of factors which will normally, in accordance with the established case law, play a significant role in any such assessment.
8.12 First, it must be emphasised that the severity or viciousness of the assault by virtue of which a victim has suffered injury must always be a highly significant factor. Subject to the earlier comments made in that regard, the injuries suffered must also be taken into account. It does, of course, have to be acknowledged that there is not always an exact correspondence between the severity of an attack and the degree of injury suffered. Sometimes, although no thanks to the assailant, a person who is subjected to a particularly vicious attack luckily escapes with relatively minor injuries. Likewise, a relatively minor attack can have severe consequences. A single blow can, unfortunately, lead to serious injuries. While some regard must, nonetheless, be paid to the consequences of the assault much greater weight will obviously attach to those consequences where they are such as might reasonably be expected to flow from the nature of the assault concerned or at least are not wholly disproportionate to that assault.
8.12 The degree of culpability of the accused is also an important factor. An entirely unprovoked attack will, ordinarily, be regarded more seriously than an assault which arises out of an incident, most particularly one which is not, or at least not only, of the perpetrators making. Factors such as provocation can be a legitimate factor to take into account in assessing the seriousness of an assault.
8.14 The general circumstances surrounding the assault, including whether it was committed in the context of other criminality, can also be a factor. The use of weapons or other objects likely to make more severe the injuries caused can also be an important factor. As pointed out earlier, there will, doubtless, on the facts of any individual case, potentially be other factors which may need to be taken into account.
8.15 So far as the facts of this case are concerned, no true explanation has ever been given as to why this assault took place. The comments made in the immediate aftermath of the assault by Adam Fitzgibbon as to his motivation appear simply to be inaccurate. What his true motivation was remains a matter of speculation. That he may have had some “history” with Kevin Meaney is possible. However, without fully understanding any such history, it is impossible to regard this case as one where any of the circumstances which pre-dated the assault might minimise the severity with which it must be viewed.
8.16 There can be little doubt that the video evidence in this case shows an appalling and vicious assault. It can only be placed at the upper end of the range. However, it does need to be taken into account that many assaults do not occur in the full glare of video cameras. In such cases, all a sentencing judge has to go on are eye witness accounts which may not demonstrate the full ferocity and viciousness of an assault in quite the same way as a video camera can. Sentencing should not, however, be excessively influenced by reference to the extent to which there was graphic evidence available. While the Court agrees that this case is properly placed at the top end of the most serious part of the range, the Court is, nonetheless, not satisfied that this is one of those cases which is so severe or so serious that it must go beyond that range. In those circumstances, it seems clear to this Court that, before considering any question of mitigation, the initial indicative sentence proposed by the trial judge of 15 years was out of line with the generality of sentences reviewed in this judgment which relate to severe assaults with often catastrophic consequences for victims. On that ground alone, this Court is satisfied that the appeal would have to be allowed.
9. Substance Abuse and Background
9.1. As noted earlier, a plea in mitigation had been put forward on behalf of Adam Fitzgibbon which sought to place reliance on his dysfunctional background and his long history of substance abuse. In relation to those matters the trial judge said the following:-
“In relation to the accused’s dysfunctional background, I have regard to the ruling of Geoghegan J. in DPP v. Stafford that this affords little, if any, mitigation.”
Previously in relation to the question of drink and drugs, the sentencing judge said that he had “regard to the ruling of Murray C.J., as he then was, that this affords not only no defence but also no mitigation in one’s responsibility to society”. Thus, as pointed out earlier, it seems clear that the trial judge did not consider either of those factors to be of any significant mitigation and specifically related the suspension of the final 3 years of the sentence to other factors. It is urged on behalf of Adam Fitzgibbon that this represents an error in principle.
9.2. The reference to the ruling of Murray C.J. is a reference to the judgment of this Court, delivered by Murray C.J., in DPP v. Keane [2008] 3 IR 177 where, at p. 200, the Court said that “the fact that drink and drugs played a part in the evening in question does not absolve him from his answerability to the law and society”.
9.3. It is important to note that the case with which this Court was concerned in Keane was one which involved an accused with no previous convictions and who was only 18½ years of age at the time the offence was committed. It was clear from the evidence given in that case that the accused had difficulty in recalling the offence itself because of his consumption of drink. It does not seem to this Court that, in Keane, Murray C.J. was laying down a broad principle that the fact that an accused suffers from difficulties with substance abuse cannot be a factor to be taken into account in the sentencing process. Rather this Court was making clear that the mere fact that an offence is committed by a person who is under the voluntary influence of drink or drugs does not, of itself, offer any significant mitigation. If people get drunk and commit offences while they are drunk, then they cannot be heard to use their drunkenness as a mitigating factor. However, that is not to say that, in particular, persons who suffer from a persistent problem of addiction or substance abuse should not have, in an appropriate case, that factor taken into account. There is a world of difference between a case in which a person seeks to rely on the fact that they were drunk to provide some partial mitigation for an offence and one where a person who suffers from substance abuse and, in particular, may be seeking to take steps to deal with their problem although not yet successfully, may seek to offer that as part of the general circumstances which ought to be taken into account.
9.4. The reference by the sentencing judge to the decision of Geoghegan J. in Stafford is again a reference to the judgment of this Court, delivered by Geoghegan J., in DPP v. Stafford [2008] IECCA 15. The full passage, of relevance to the question of background, from that judgment appears at p.13 and reads as follows:-
“The learned trial judge correctly points out that in the case of numerous offenders appearing before him there is a dysfunctional history. That of itself and by itself cannot really differentiate the case from many others. There are sound public policy reasons why minimal importance can be attached to mitigating arguments based on drink or drugs. Furthermore, many law abiding families suffer a series of unfortunate bereavements and that cannot be an excuse for crime. What the court thinks is important in this case, however, and given the nine year supervision order which the learned trial judge imposed, the court believes the trial judge was of the same view is the concrete evidence of genuine attempts at self-rehabilitation with particular reference to drugs. This seems clear from the reports which were before the judge. In considering whether the sentence is unduly lenient or not, the nine year supervision order should not be ignored. Clearly, it was thought out carefully by the learned judge and in a context that rehabilitation appeared viable.”
9.5. It seems to this Court that Geoghegan J. was doing no more than emphasising that the mere fact that a person may have some unfortunate elements to their background cannot, of itself and by itself, amount to a significant mitigating factor. As Geoghegan J. pointed out many families suffer difficulties and do not resort to crime. However, it again seems to this Court that the judgment delivered by Geoghegan J. in Stafford is not authority for the proposition that a dysfunctional background, no matter how severe, can not be a potentially significant factor to be properly taken into account in the sentencing process.
9.6. To say, as the sentencing judge in this case said, that the combined effect of the judgments of this Court in Keane and Stafford is that drink or drugs and a dysfunctional background cannot be of any great weight seems to the Court to be a significant misreading of what this Court was saying in those cases. This Court went no further than to say that drink, of itself, or drugs, of itself, cannot be a mitigating factor. Likewise, some degree of dysfunctionality in background is not likely to provide a mitigating factor.
9.7. However, that being said, a sentencing court is required to consider, as part of the overall circumstances, whether a persistent problem with substance abuse, most particularly if it could be said to stem from a particularly difficult upbringing, can amount to a factor which can weigh significantly in an appropriate sentencing process on the facts of a particular case. This will be so, as Geoghegan J. pointed out, especially if there are attempts at rehabilitation or, in the view of this Court, where the accused was particularly young at the time of the offence and where there may be a realistic prospect of rehabilitation in the future.
9.8. It appears to this Court that there was an error in principle on the part of the trial judge in failing to consider whether the nature of Adam Fitzgibbon’s problems with drink and drugs stemming from his particularly severe dysfunctional background brought this case outside of the type of case identified in Keane and Stafford where there is a simple reliance on drink or drugs as an excuse or on a less than favourable background as a significant mitigating factor. The Court is, therefore, satisfied that the appeal must be allowed on those grounds as well. In the light of the Court’s findings in this and the preceding section of this judgment, it is unnecessary to consider any of the other subsidiary points raised by counsel.
10. Consequences
10.1. At the hearing of the appeal, counsel for Adam Fitzgibbon indicated that he had up-to-date materials available for the Court in the form of reports on Adam Fitzgibbon’s progress while he has been in prison. The Court indicated that it would not consider it appropriate to consider those reports unless and until a finding had been made that the sentencing judge was guilty of an error in principle such that the sentence would have to be revisited. However, given that the Court has now formed that view, the Court feels that it is appropriate in this case, particularly given Adam Fitzgibbon’s young age and previous record, to take into account such reports.
10.2. While noting that counsel indicated that, in the event that the appeal was successful, he did not wish to have the opportunity to address the Court again on the question of what an appropriate sentence might be, the Court is, nonetheless, of the view that it would be assisted by hearing submissions from counsel for both the DPP and Adam Fitzgibbon as to what the appropriate sentence should be in the light of all of the circumstances of the case, including such further evidence as may now be put forward, together with the views expressed by this Court in this judgment.
10.3. In the circumstances, the Court proposes to put the case in for further consideration at an appropriate time in the future at which it will hear such submissions. The Court will, therefore, indicate that it will in principle allow the appeal and will determine the appropriate sentence to be imposed in lieu of that imposed by the sentencing judge when it has had the opportunity of considering such submissions and evidence.
People (DPP) v P.McC
2018] IECA 309
JUDGMENT of the Court delivered on the 3rd of October 2018 by Mr. Justice Edwards.
1. The respondent to this appeal pleaded guilty in Dublin Circuit Criminal Court to two separate Bills of Indictment, namely:
• Bill No. 835/2016 – involving one count of burglary contrary to s. 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001; one count of damaging property contrary to s. 2(1) of the Criminal Damage Act 1991; and one count of dangerous driving contrary to s. 53(1) of the Road Traffic Act 1961 (as inserted by s. 4 of the Road Traffic (No. 2) Act 2011.
• Bill No. 833/2016 – involving one count of unlawful use of a mechanically propelled vehicle contrary to s. 112 of the Road Traffic Act, 1961, as amended; one count of assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act, 1997; one count of driving a mechanically propelled vehicle without holding a driving licence contrary to s. 38 of the Road Traffic Act 1961; and one count of use of a mechanically propelled vehicle without insurance, contrary to s. 56(1) and (3) of the Road Traffic Act 1961, as amended.
2. On the 11th of November 2016, a “full facts” sentencing hearing took place in respect of the offences on these two Bills of Indictment and the respondent was sentenced to a cumulative term of three years detention, comprised as follows:
Bill No. 835/2016
(i). Detention for three years on each of count nos. 1 and 2 (the burglary and criminal damage), to run concurrently inter se and to date from the 22nd of June 2016, with the final two years suspended on certain conditions (particularised later in this judgment).
(ii). Detention for 3 months on count no. 3 (the dangerous driving count), plus certain various ancillary and consequential orders including a three year period of disqualification from holding a driving licence. This sentence was also to run concurrently with the sentences on counts nos. 1 and 2, and to date from the 22nd of June 2016.
Bill No. 833/2016
(i). Detention for three years on count no. 1 (the unlawful use of a MPV);
(ii). Detention for three months on each of counts Nos. 2 and 4, (the assault and no insurance charges, respectively);
(iii). The sentences on counts nos. 1, 2 and 4 were to run concurrently inter se and were all to date from the 22nd of June 2016;
(iv). The final two years of the sentence on count no. 1 were suspended on certain conditions (again, particularised later in this judgment);
(v). count no. 3 was taken into consideration.
3. The applicant, namely the Director of Public Prosecutions, now seeks a review of the said sentences pursuant to s. 2 of the Criminal Justice Act 1993 (“the Act of 1993”) on the basis that they were unduly lenient.
Background facts
(Bill No. 835/2016)
4. At the sentencing hearing, Garda Gerard Smith gave evidence that, on the 13th of April 2016, a Ms. Bernadette Howard was at home in her house on Weston Drive in Lucan. She parked her car outside her house at about 8.30 pm. The evidence was that Ms. Howard was awoken during the night by the doorbell ringing at about 3.50 am. It was her neighbour who informed her that he believed her car had been stolen, as he had been on the road and had seen someone, who he initially thought to be Ms. Howard, putting a plasma TV into her car. Upon realising that it wasn’t Ms. Howard, the neighbour rang the Gardaí.
5. Subsequently, Ms. Howard checked the house and realised that it had been broken into whilst she was asleep. She reported that her television had been taken, an LG Smart TV 3D valued at €1,000, along with a black X-box valued at €400 had also been taken. In addition, her purse had been rifled through and the contents were spread all over the garden. A debit card and US$120 made up of $20 bills were missing from the contents of her purse. Her car keys were also missing, as were keys to her parents’ house. Ms. Howard also noticed that her car was not parked where it had been. The evidence was that, as she was talking to her neighbour, Ms. Howard saw her car approaching and that it was being followed by another car, a blue Yaris. The cars were being driven at a high speed and in an erratic manner as they were being pursued by a Garda car.
6. Garda Smith’s evidence was that he had received a call from Ms. Howard’s neighbour, Mr. Corrigan, at approximately 3:55am reporting the suspected burglary, following which he proceeded in a patrol car to the relevant address. Upon arriving in Ms. Howard’s estate, Garda Smith came across both Ms. Howard’s car, which was a Volkswagen Polo, and another car, a Hyundai. Ms. Howard’s car was being driven by a Mr. Keane Doherty (“the co-offender”) and the respondent was driving the Hyundai. Garda Smith activated the blue lights and siren on his vehicle and positioned the patrol car so as to block the road leaving the estate. The Polo car crashed into the front of the patrol car, causing the engine to cut out, momentarily. Subsequently, both the Polo and the Hyundai cars mounted the path and managed to get around the patrol car. A couple of minutes later, Garda Smith managed to restart his car and he then proceeded to pursue both cars. Upon doing so, Garda Smith observed both cars about to exit the estate at a high speed and with a number of other Garda cars now in pursuit, one of which also appeared to have suffered damage during the pursuit.
7. Upon joining the pursuit, Garda Smith observed both cars driving at a high speed towards Celbridge, ignoring traffic signals at the junction of Stacumny Lane and Celbridge Road. The pursuit lasted for approximately five kilometres, during which “both vehicles were driven in a dangerous fashion…. [at] very high speeds, [with] no regard for lanes or traffic signals or lights” As Garda Smith approached Celbridge Village, he observed that the respondent had driven straight through the parapet wall of a bridge and into the river Liffey. The evidence was that the car that the co-offender had been driving “had followed through the gap that had been created by [the respondent]’s vehicle” , and that it also ended up in the river.
8. Ultimately, both the respondent and the co-offender were recovered safely from the water by Gardaí. Both men were arrested and detained. The respondent was conveyed to Lucan Garda Station where he was detained under s. 4 of the Criminal Justice Act 1984. He was interviewed during the course of that detention. When asked how he ended up in the river Liffey before being arrested, the respondent replied “I stuck a car into it getting chased by you and only for the bridge I would have got away”. When asked where the car came from, the respondent stated “I don’t know. I fished the keys through a letter box”. When asked if he took anything else from the house, he stated: “The young fella who was with me took the Polo. We took nothing from the house”. When asked if he knew the car was stolen, he stated “Of course I did”.
9. The respondent was charged and was prosecuted on indictment with the offences the subject matter of Bill No. 835/2016, to which, as has already been stated, he pleaded guilty.
(Bill No. 833/2016)
10. The incidents forming the subject matter of this Bill of Indictment occurred two days after the incident the subject matter of Bill No. 835/2016, and while the respondent was out on bail in respect of the charges proffered in respect of the earlier incident. Garda Graham Doolin gave evidence that, on the 15th of April 2016, Mr. Terrence Kennedy, an 80-year-old man was returning from the Tesco in Ballyfermot. He pulled up at 11am outside his house and got out of the car to open the gate to the driveway. The respondent approached Mr. Kennedy on a bicycle and jumped off the bicycle and got into the car. Mr. Kennedy tried to open the door to get the respondent out of the car. However, the respondent pushed him to the ground with the car door and shouted something at him.
11. Having received a report of the incident, Garda Doolin and his colleague, Garda Sheerin, immediately attended at the scene, where they noticed Mr. Kennedy being helped off the ground by a passer-by. A search of the area proved unfruitful. The respondent had been seen on CCTV leaving his grandparents’ home nearby shortly before the offence and heading in the direction of Mr. Kennedy’s house. He was also seen in the vicinity of where the car was subsequently abandoned. A search warrant was obtained and the respondent’s house was searched and clothes were found in the house similar to those that had been worn by the perpetrator – according to the description given by Mr. Kennedy. The respondent was arrested at 11.55am, just under an hour after the offence had occurred. The evidence was that the respondent had said “I smoked you” to one of the arresting Garda, apparently referring to the fact that, unbeknownst to them, the Gardaí had passed the stolen car being driven by the respondent while on their way to the scene, leading the respondent to the impression, at least temporarily, that he had outwitted the Gardaí and that he would be able to complete his getaway. The respondent was conveyed to Ballyfermot Garda Station where he was detained under s.4 of the Criminal Justice Act 1984. During interview, the respondent denied involvement in the incident but stated that he could not remember what had happened as he had ” blacked out” in circumstances where he had taken 40 Zimovane tablets. The respondent was subsequently seen by a Dr. Khan, who certified him unfit to be interviewed, with the result that the interviewing process was postponed for six hours. The respondent was ultimately charged with the offences on Bill No 633/2016, pleaded guilty and was sentenced in the terms already outlined.
Impact on the victims
12. Ms. Howard opted not to provide the sentencing court with a victim impact statement. Mr. Kennedy did provide the court below with a statement, in which he states that he is in his 80’s and has lived in the area for the duration of his life. He has had trouble with his shoulder since the incident and his blood pressure was high “from the shock of it all”. He is also on extra medication because of stress, and the incident caused damage to the car of about €6,000. Mr Kennedy now feels nervous coming out of the house and doesn’t feel safe since the incident.
Respondent’s personal circumstances
13. The respondent was born on the 27th of December 1998, making him one month shy of his eighteenth birthday at the time of sentencing. At that stage he was already in detention for an unrelated theft offence. Prior to going into detention, he was living in [a named place in a Dublin suburb] with his mother and 11-year-old sister. However, the Probation Report (“the Report”) before the sentencing court, dated the 8th of November 2016, indicated that the family were subsequently evicted from the family home “due to the [the respondent’s] behaviour in the area, questions about who exactly was residing in the house and an incident where shots were fired into the house”. At the date of the Report his mother was engaged in attempting to challenge the eviction order. The respondent’s main source of familial support is his mother. However, the Report noted that “his behaviour towards her can be controlling and abusive.” He enjoys a good relationship with his sister and grandparents. The respondent was estranged from his father, but had received some visits from him since being initially remanded in Oberstown and ultimately detained in Wheatfield in respect of the present offences.
14. The respondent attended school until he was 14, at which time he was expelled for being disruptive in class, disrespectful towards teachers and for involvement in fights with other pupils. He was previously suspended in 5th class of primary school for disruptive behaviour and was assessed for ADHD in first year of secondary school, although it is unclear if a diagnosis was ever made. The respondent then attended an educational course in Dublin for young people who have left school early due to behavioural difficulties. He was expelled from this course after three months for similar disruptive behaviour. He appears to have been home-schooled and passed his junior certificate. He was referred to the Youthreach centre at Sherrard Street, Dublin 1 by the Probation Service, but refused to attend the appointment. Whilst in Oberstown, the respondent initially engaged well with the education services but “his behaviour became increasingly challenging and he was removed from the main group.” As of the date of his sentencing, the respondent had not engaged with the educational opportunities in Wheatfield and did not “wish to use his time in detention for any positive activities; he is anxious to get a date for release and then just ‘keep (his) head down’ until that date”.
15. The respondent has very serious substance misuse issues. He began inhaling aerosols and petrol at the age of eight. He began smoking cigarettes at 11, cannabis at 13 and taking cocaine and benzodiazepines at 15 years of age. The respondent reported to have begun abusing alcohol from the age of 16 years, drinking up to a litre of vodka a day if he was unable to access illicit drugs. In early 2016, the respondent attended a local addiction counsellor and was accepted onto a residential treatment programme in the Aisling Centre in Kilkenny in March 2016. However, the respondent was asked to leave the centre after two days due to aggressive and abusive behaviour towards staff. The Report noted that the respondent claimed to have been drug free for the seven months that he was in Oberstown and Wheatfield. However, the report also noted that “his only motivation to agree to addressing his substance misuse issues is a possible reduction in the length of his sentence”.
16. The Report further records that the respondent has demonstrated “very limited victim empathy or remorse” , and that “while substance abuse is one of the main risk factors in [the respondent’s] offending behaviour, his volatile behaviour while drug free and in detention is very concerning”. However, it was accepted by Garda Doolin in evidence at the sentence hearing that the respondent “presents very very differently when he is not under the influence of substances.”
17. The Report concludes that the respondent “is in the very high risk of re-offending in the proceeding 12-month period. Risk factors identified are his history of offending behaviour, lack of parental control/supervision, substance misuse, absence from education/training, aggressive behaviour, refusal to engage with services/supports, anti-social, pro-criminal attitudes. A positive factor is the support of his mother. On [the respondent’s] release from detention it is essential that he addresses the risk factors contributing to his offending behaviour, especially substance misuse and absence from education/training. When interviewing [the respondent] for this report, he initially stated that he would engage with relevant services, but then subsequently stated that he had no interest in doing so, other than reducing the length of his sentence. As [the respondent] is unmotivated to address the relevant risk factors, it is unlikely that further Probation supervision would have any positive impact at this juncture.”
18. The respondent’s counsel at the sentence hearing, whilst not taking issue with the bona fides of the author of the Report, submitted that her instructions were at odds with what was stated in respect of the respondent’s motivation to address his issues. His counsel stated that “he is somebody who instructs me in absolutely unequivocal terms that he has addressed and is addressing, and it’s going to be a constant struggle for somebody such as himself, the drug addiction that he has suffered.” Urinalysis was directed on the date that the respondent entered his guilty plea, however, the results of this analysis were not before the court on the date of the sentence hearing. The respondent gave evidence himself at the sentence hearing, during which he stated that he had been drug-free since entering custody in respect of the offences for which he was about to be sentenced. He also gave evidence that, on the occasion that he met with the Probation Officer who was the author of the report, he was in a really bad humour as he had been “on 23 and a half hour lock up for the last two days. So I wasn’t even in the humour to be talking to anybody.” He also stated that upon returning to the community in the future, “I just want to stay clean and go back to the family life with my ma and not make it hard on my ma anymore and have a — try and get a job or something, or a FÁS course.”
19. The respondent has 11 previous convictions, all of which were dealt with in the Children’s Court. His list of previous convictions is comprised of two convictions for public order offences, one for possession of stolen property, one for a s. 2 assault, two for committing criminal damage, one for possession of a knife, two for trespass offences, and two for theft offences.
Sentencing Judge’s Remarks
20. In the course of sentencing the respondent, the sentencing judge said the following:
“Now, in this case the Court is met with six counts, a number of which are quite serious counts and that’s one of the difficulties in the case. The case is left [sic] — the Court is left to balance the mandatory principles in section 96, the fact the accused is a young man of 17 years of age coming before this Court in respect of what are quite serious offences. The Court accepts that Mr McC has not been engaging in criminal activity since he was a very young child but, in the last number of — two years has come before the Court on a number of occasions. The Court accepts that these matters were dealt with by the District Court but the flavour of the offences are somewhat similar to the flavour of these offences, although the Court does take into account that these offences are of a more serious nature than the previous offences and that is one of the difficulties in terms of dealing with Mr McC. Unfortunately, he’s not a young man who has followed an education or a training path and he left school at a young age and that is one of the difficulties in the Court. The Court obviously has to bear in mind his capacity for rehabilitation in view of the fact that he is so young
Now, in respect of the first offences, by way of aggravation of the burglary counts, that is aggravated by the fact that there was a stolen car used in the course of that and, while Mr McC denied being the person to burgle the property and Garda Smith accepted that, nonetheless he was part and parcel of a joint enterprise in that regard, and that has to be an aggravating factor. The Court also takes into account the manner in which they left the scene that night in stolen vehicles and Mr McC was the driver of one of those vehicles and certainly the manner of driving described by the gardaí was most dangerous to the public and to ordinary people going about their business at that hour of the morning, and Mr McC is lucky that neither himself nor members of the public were not more seriously injured in the circumstances and the fact that the offence, the driving offence, is aggravated by the fact that it continued for five kilometres along the road and culminated in the car being driven into the River Liffey and causing damage as well to the bridge involved, and also causing the driver behind him effectively to go through that gap, which occurred as a result of that — of his car going through the bridge. All of those matters are aggravating factors in terms of the offending. The fact that he has previous convictions also aggravates the offending.
The Court has to and is indeed mandated to take into account the youth of Mr McC at the time, and while he was under the influence of drugs, this is not a mitigating factor, but it does explain the context of some of the — or all of the offending, which unfortunately comes before this Court all too often where a young man is out of control on drugs.
The Court obviously takes into account his guilty plea, and the Court takes into account the fact that he has addressed some of the issues behind his offending, that he is now drugs free and the Court accepts that he is drugs free and accepts his motivation in that regard, because he did strike the Court as sincere in that regard. The difficulty for the Court is how he will conduct himself upon release from prison and the Court obviously has to ensure that there’s a structure put in place to ensure that he addresses not alone the drugs issue, but the underlying issues dealing with this — which underline these offences.
In terms of the burglary, I haven’t had a victim impact report from the victim, Ms Howard, but it’s clearly a dreadfully difficult situation for any person to be woken in the middle of the night and told that their car has been stolen and then to go on to realise that other items from the house had been stolen. That’s a very distressing thing for anybody to deal with. In respect of parity of sentence, the Court has to assess Mr McC involvement, and clearly it’s he who — it was his driving that caused the damage to the bridge and, while Mr D [co-offender] was an adult at the time of sentencing, he was also very young and still a minor at the date of the offence and the Court bears that in mind.
In terms of count 1, the Court considers that this offending comes within the mid-range, the lower end of the mid-range of offending in respect of burglary, and as I said it’s aggravated by the fact that a stolen car was used so it brings it within the mid-range. Had the matter gone to full trial, I would have considered a four-year sentence to have been the appropriate sentence. In terms of the criminal damage, that comes within the higher end of the mid-range of sentence and the Court would have considered a four-year sentence to have been the appropriate sentence.
Taking all matters into consideration, in particular the fact that the Court is obliged by section 96 to take into account that the penalty imposed should cause as little interference as possible with the child’s legitimate activities and pursuits and should take the least restrictive form that is appropriate in the circumstances, the Court considers that a three-year sentence, two years of which I will suspend in respect of counts 1 and counts 2 on the first bill to run concurrently to be the appropriate sentence. The sentence then is to be suspended on condition that Mr McC remain under the supervision of the probation services, that he fully co-operate with them and follow all directions of the probation service; that he undergo urine analysis as directed by the probation services and undertake all counselling as directed by the probation services; that he keep the peace and be of good behaviour for the period of two years, and this sentence is suspended for two years from the date of release.
…………………………….
Now, in respect of the second bill then, I’ll just start with the lesser offence first then, in respect of the driving, the dangerous driving, I’m going to impose a three-month sentence and a three-year ban. That’s in respect of count 3. Now, in respect of the other two counts, clearly the aggravating factor in respect of the theft of the car, the unlawful taking, is the fact that there was a degree of violence used on an elderly man, an 80-year-old man, Mr Kennedy. The Court has had the benefit of the victim impact report from Mr Kennedy. As a result of this he’s been on extra medication due to the stress caused to him. He’s nervous coming and going to his house and he doesn’t feel safe, and I think that encompasses any elderly person’s worst fear is not to feel safe and to interfere with an elderly person’s sense of security aggravates any type of offending, including this offending.
The Court accepts that the accused has expressed remorse in respect of Mr Kennedy, but nonetheless the Court has to take into account the effect on Mr Kennedy. There were medical effects as well. His blood pressure was very high afterwards and he collapsed sometime later due to blood pressure, and the degree of violence meted out on an 80-year-old man – he was knocked to the ground – aggravates the offending, and the Court has to mark the sentence where there’s a degree of preying on an easy target. I suppose the easy target — on an elderly victim. The fact that the accused was on bail in respect of the previous offences aggravates these offences.
By way of mitigation, the Court takes into account that the accused has pleaded guilty. He has expressed remorse in respect of Mr Kennedy and indeed he did that in the probation report as well. It seems that this offence was not pre-planned; it seemed to be more an opportunistic offence, and the Court takes that into account. However, the Court in particular takes into account the youth of Mr McC at the time; he was 17 years of age, and again a minor at the time.
In respect of count 1, the Court considers that this comes within the mid-range of offending for offences of this type and Court is going to impose a sentence of three years, two years of which are suspended on the same conditions as the previous sentence.
The fact that there was an assault on an elderly person in terms of count 2, that has to be marked by a sentence and the Court imposes a three-month sentence in respect of the assault, and the Court has already indicated its sentence.”
Grounds of Appeal
21. The applicant initially advanced five grounds in support of her contention that the sentences handed down by the sentencing judge were unduly lenient. They are as follows:
i) The sentencing court gave insufficient weight to the aggravating factors in the case.
ii) Without prejudice to the generality of the foregoing, the sentencing court had inadequate regard to the fact that the offences committed by the respondent, the subject of bill DUDP833/2016, were committed while he was on bail in relation to the offences committed by the respondent the subject of bill DUDP835/2016.
iii) The sentencing court gave excessive weight to the mitigating factors in the case.
iv) Without prejudice to the generality of the foregoing, the sentencing court gave excess weight to the fact that the respondent pleaded guilty.
v) Without prejudice to the generality of the foregoing, the sentencing court gave excess weight to the fact that the respondent was a child.
22. Both sides filed helpful written submissions addressing these complaints. The matter was then part heard before this Court on the 6th of July 2017, and in the course of that hearing it became apparent that there was serious disagreement between the parties concerning the jurisdiction and ability of this court to re-sentence the respondent in the event of it being satisfied that the sentences imposed in the court below were unduly lenient. This was because the respondent had by that stage attained his majority, and it was argued on his behalf that a person over the age of eighteen cannot be sentenced to detention. By the same token, it was further submitted, as the respondent was a minor at the time the offences were committed, the Children Act 2001 (“the Act of 2001”) would preclude this Court from imposing a sentence of imprisonment on him at any re-sentencing, even though he has by now attained his majority. There is, according to the respondent, a lacuna in the law which would in effect emasculate the ability of this Court to do anything other than to declare that the sentences had been unduly lenient. It would not, however, be possible to quash the sentences with a view to replacing them with a more severe sentence as there are no viable sentencing options to which recourse could be had for that purpose.
23. A subsidiary issue was also raised by this Court of its own motion, concerning whether, and if so how, s.11 of the Criminal Justice Act 1984 might apply in the event of a re-sentencing, in circumstances where the respondent was a minor both at the date of the commission of the offences in question, and at the date of his sentencing, but had attained his majority in advance of a possible re-sentencing.
24. This Court considered that the issues that had been raised both by the respondent, and by the Court itself, were significant, and potentially far reaching in their implications, and in the circumstances adjourned the hearing to allow the parties to file supplementary legal submissions on the issues that had emerged. This was done, and the hearing was resumed and concluded on the 17th of July 2018.
25. The issues raised as to jurisdiction and re-sentencing options would clearly be moot in the circumstances of this particular case if we were of the view that the sentences in quest were not in fact unduly lenient. Accordingly, before embarking on any consideration of those issues, it is necessary to express a view on the merits of the undue leniency review. To that end, it may be helpful to briefly outline the parties’ respective submissions on the substantive application.
Applicant’s submissions
26. Whilst proffering the five grounds outlined above in seeking to impugn the sentences imposed, the applicant’s written submission focuses largely on the principle of parity and discrepancies between the sentences imposed upon the respondent for the offences on Bill No. 835/2016 and those imposed upon his co-offender. The co-offender was sentenced to two-and-a-half years, with the final eighteen months suspended, to run concurrently with a District Court sentence. This sentence was appealed to this Court by the DPP on the grounds of undue leniency. This Court found the co-offender’s sentence to have been unduly lenient and replaced the sentence with one of two-and-a-half years, with the final 21 months suspended, but made it consecutive to the sentence that had been imposed in the District Court.
27. The applicant concedes that the respondent and his co-offender have several distinguishing features between them, particularly; the fact that the co-offender had 33 previous convictions at the time of sentence, including five for burglary and seven for offences contrary to s. 112 of the Road Traffic Act 1961 (as amended). Moreover, the co-offender had attained his majority by the time he was sentenced. In contrast, this respondent was approximately six weeks shy of his eighteenth birthday on the date of his sentencing and, therefore, was still subject to the provisions of the Act of 2001.
28. However, the applicant submits that the sentencing judge fell into error in imposing an unduly lenient sentence in failing to give due weight to the fact that the respondent had committed the offences forming the subject matter of Bill No. 833/2016, whilst the respondent was out on bail in respect of Bill. No. 835/2016. It is also submitted on behalf of the applicant that too much weight was given to the guilty pleas where, in respect of Bill No. 835/2016, the sentencing judge held that if the matter had gone to trial the appropriate sentence would have been four years and in circumstances where the sentence handed down following a plea was three years with the final two years suspended. Counsel for the applicant also submitted that the s.112 offence on Bill No. 833/2016 had a significant effect on the victim and was not given proper weight as an aggravating factor. The applicant also argues that the gravity of the offences on Bill No. 835/2016 was not properly assessed, and that too much weight was given to the provisions of s. 96 of the Children Act 2001, in circumstances where there was no evidence of the respondent being in education or training at the time of sentence.
Respondent’s submissions
29. In response, the respondent submits that the applicant has not, with either submissions of law or fact, discharged their onus of proof to show that the sentence imposed upon the respondent was unduly lenient in line with the well-established principles set out in the jurisprudence. Further, the respondent submits that there were several specific factors personal to the respondent which justified the imposition of a largely suspended sentence, namely; an early guilty plea; the respondent’s minor age at both the commission of the offences and the sentencing hearing, and thus the application of section 96 of the Act of 2001; the accepted evidence of the respondent’s intoxication during the commission of the offences in question; the respondent’s difficult personal circumstances including serious substance abuse; the respondent’s drug free status at the time of the sentencing hearing; the nature of the respondent’s previous convictions in comparison to those of his co-offender, and; the respondent’s expression of remorse and willingness to engage with the relevant services to become fully integrated within the community again.
30. The respondent also disputes the contention of the applicant that insufficient weight was given to the aggravating factors in the case, as throughout the judgment there are numerous explicit references to the aggravating factors in the case, including the fact that he was out on bail for the first set of offences when he committed the second set of offences.
31. In terms of the parity argument, this Court’s attention was drawn to a number of decisions that stand as authority for the proposition that the parity principle is subservient to the principle that all sentences imposed must be proportionate to the gravity of the offence and the personal circumstances of the offender – The People (Director of Public Prosecutions) v Daly [2012] 1 IR 476 at 504-505; The People (Director of Public Prosecutions) v M [1994] 3 IR 306 at 316- 317 per Denham CJ)
32. Finally, the respondent drew this Court’s attention to a recent decision of this Court which re-affirmed, lest there be any doubt about it, that there is a punitive aspect to a suspended sentence – The People (Director of Public Prosecutions) v Christie [2017] IECA 110.
Were the sentences unduly lenient?
33. The law in relation to undue leniency appeals is well settled and has been re-iterated by us in numerous previous judgments. There was no dispute about it in this case and accordingly it is unnecessary to set it out again for present purposes. It is sufficient to say that a sentence will be regarded as being unduly lenient if it represents a clear divergence from the norm.
34. This Court is of the firm view that the sentences were unduly lenient, notwithstanding the imperatives set forth in s.96 of the Act of 2001. The cumulative sentences of three years detention, the final two years of which were suspended, represented a clear divergence from the norm in our view. They manifestly failed in our view to sufficiently reflect the gravity of the offending conduct, and that was an error of principle.
35. There is also the consideration, although it is a secondary one, that the sentencing judge in fact had no power to part-suspend the sentences of detention that she imposed upon the respondent. However, the sentencing judge is not to be criticised in that regard, because at the point at which she sentenced the respondent, she did not have the benefit of this Court’s judgment in The People (Director of Public Prosecutions) v A.S [2017] IECA 310 (Edwards J, 28th of November, 2017, with Birmingham J [as he then was] and Mahon J, nem diss) in which it was held that, as a consequence of the enactment of the Act of 2001, neither a statutory nor common law power to suspend a sentence of detention exists at present. The respondent has submitted, correctly in our view, that while the present sentences would be amenable to appeal by the respondent on that account for jurisdictional error, they are not so amenable to appeal by the applicant. It follows that the only basis on which this Court can interfere at the behest of the applicant is if the sentences were otherwise unduly lenient. In that regard, we do not agree with a further submission by the respondent that we are precluded by the existence of the ostensible jurisdictional error from considering the undue leniency issue at all.
36. On the contrary, this Court being of the view that the sentences at first instance were otherwise unduly lenient, we consider the legally inappropriate sentencing structure adopted at first instance is capable of being addressed on any re-sentencing, providing that a re-sentencing is possible.
37. It follows from our finding that the sentences in question were unduly lenient, that the question of potentially quashing the original sentences and re-sentencing the respondent appropriately now arises for consideration. The question is: does this Court in fact have the necessary jurisdiction and powers to do so in circumstances where the applicant has attained his majority since he was sentenced at first instance? It is necessary at this point to consider the supplementary written submissions that have been filed, and amplified in oral argument, by counsel for each of the parties.
Supplementary submissions on behalf of the applicant
38. The Court required the parties to exchange further submissions in respect of the following two issues:
(i). The jurisdiction of this Court pursuant to section 2(3) of the Act of 1993 to impose a new sentence upon a respondent who was sentenced to a period of detention as a child but who attains his majority prior to the appeal being heard;
(ii). The relevance, in the context of the present appeal, of section 11 of the Criminal Justice Act 1984
39. It was submitted that the central issue in relation to (i) revolves around s. 2(3) of the Act of 1993 which provides for the options available to the Court on a s. 2 appeal. They are as follows:
“(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.”
40. The respondent was sentenced by the sentencing judge to detention. Imprisonment was not an option as s.156 of the Act of 2001 prohibits imprisonment of a child. Section 156 of the Act of 2001 provides: “No court shall pass a sentence of imprisonment on a child or commit a child to prison” . Therefore on a literal reading of the section, the Court of Appeal cannot impose a sentence of imprisonment on the respondent if the sentence is deemed unduly lenient because imprisonment is not “a sentence which could have been imposed on him by the sentencing court”.
41. Section 142 of the Act of 2001 (as amended) provides for the making of detention orders by a sentencing court. The section reads as follows:
“142.—A court may, in accordance with this Part, by order (in this Part referred to as a “children detention order”) impose on a child a period of detention in a children detention school specified in the order.”
42. There appears to be no statutory power to impose a detention order on a person who is not a child. Therefore, on a literal interpretation of the legislation, the Court of Appeal cannot impose a detention order on the respondent who is no longer a child.
43. Section 155 of the Act of 2001 provides for a situation where a child is the subject of a detention order but turns 18 while in detention. It provides in certain circumstances that a person could remain in the child detention school after turning 18 for up to six months. It does not, however, provide for imposing detention orders on adults.
44. Therefore on a literal interpretation of the section, the Court of Appeal would have no power to imprison the respondent, nor detain him in the event of a finding of undue leniency. Furthermore, the legislation covering community service orders and fines all contain imprisonment in default provisions which could not have been imposed by the sentencing judge. Counsel for the applicant has in effect conceded that if s.2(3)(a) of the Act of 1993 is to be interpreted literally, the Court of Appeal cannot re-sentence the respondent so as to substitute an appropriate sentence for the existing unduly lenient sentence. However, the applicant maintains that s.2(3)(a) of the Act of 1993 can be given a purposive construction, which would enable this Court to re-sentence the respondent to an appropriate term of imprisonment.
45. Before unfolding the applicant’s argument as to the legal basis on which the relevant provision might be afforded a purposive construction, it ought to be noted that the applicant points out that an identical issue would potentially arise in an appeal by a defendant against the severity of his/her sentence, if detention was imposed at first instance before the appellant had attained his/her majority, and they had attained majority by the time of any proposed re-sentencing consequent upon success in the appeal. In this instance the relevant provision is s.3(2) of the Criminal Procedure Act 2003, which provides:
“On the hearing of an appeal against sentence for an offence the Court may quash the sentence and in place of it impose such sentence or make such order as it considers appropriate, being a sentence or order which could have been imposed on the convicted person for the offence at the court of trial.”
46. It is further desirable before examining the argument in support of a purposive interpretation to review what the applicant says are the jurisdictional parameters within which this Court must act. The applicant acknowledges that unlike the Court of Criminal Appeal, the Court of Appeal is not a creature of statute but has a constitutional basis. Article 34.4.1° of the Constitution now provides for a Court of Appeal:
“The Court of Appeal shall-
(i) save as otherwise provided by this Article, and
(ii) with such exceptions and subject to such regulations as may be prescribed by law,
have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
47. Under s. 7A(3) of the Courts Supplemental Provisions Act 1961 (as inserted by s. 8 of the Court of Appeal Act 2014), the Court of Appeal enjoys the jurisdiction of the former Court of Criminal Appeal:
“(3) Subject to section 78(1) of the Act of 2014, [which relates to extant appeals which were then before the Court of Criminal Appeal] there shall be vested in the Court of Appeal all jurisdiction which was, immediately before the establishment day, vested in or capable of being exercised by the Court of Criminal Appeal.”
48. Section 7A(8) provides that the “jurisdiction vested in the Court of Appeal shall include all powers, duties and authorities incidental to the jurisdiction so vested”. Therefore, the applicant submits, the Court of Appeal enjoys powers incidental to the jurisdiction vested but no inherent original jurisdiction in relation to criminal matters.
49. It was acknowledged in the applicant’s submissions that the Court has described a broad jurisdiction for itself in relation to its jurisdiction in appeals from the High Court, e.g., in Kelly v UCD [2017] 3 IR 237. However, the Constitution provides only for appellate jurisdiction from courts other than the High Court (such as the Circuit Criminal Court) to the extent “prescribed by law”. Therefore, it was submitted, there is no basis to look for a general jurisdiction to make an order other than that allowed for in the Act of 1993. Rather, the Court of Appeal’s power in that respect is identical to that of the former Court of Criminal Appeal.
A Possible Purposive Construction?
50. The applicant has submitted that it is well established that penal statutes can be the subject of a purposive interpretation in some circumstances.
51. In Director of Public Prosecutions v Moorehouse [2006] 1 I.R.421, Kearns J. noted (at p.444, para 70) the general presumption that penal statutes must be construed strictly but went on to observe that: “That is not to say that a penal statute cannot be construed in a purposive manner, or that the court should readily adopt a construction which leads to an artificial or absurd result.”
52. Counsel for the applicant cited the case of Director of Public Prosecutions (Gda Ivers) v Murphy [1999] 1 IR 98 as illustrating Kearns J’s point. This case involved a construction of s. 6(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997, which introduced the giving of evidence of arrest, charge and caution by way of certificate. This provision obviated the need for prosecuting gardaí to come to court to give oral testimony in order to make a formal complaint before the District Court and allowed it to be done by way of certificate evidence in their absence. However, the subsection was expressly stated to apply only to “a person, who has been arrested otherwise than under a warrant”. The precise terms of the provision were as follows:
“Where a person, who has been arrested otherwise than under a warrant, first appears before the District Court charged with an offence, a certificate purporting to be signed by a member and stating that that member did, at a specified time and place, any one or more of the following namely –
(a) arrested that person for a specified offence,
(b) charged that person with a specified offence, or
(c) cautioned that person upon his or her being arrested for, or charged with, a specified offence,
shall be admissible as evidence of the matters stated in the certificate.”
53. The accused was arrested and brought to Store Street Garda station where she was charged with offences under the Larceny Act, 1916, as amended. She was brought before the Dublin Metropolitan District Court where evidence of arrest, charge, and caution was given by way of certificate pursuant to s. 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997. The accused’s solicitor submitted that since neither of the two certificates provided under s.6(1) contained any averment that the arrest was “otherwise than under a warrant” , and since s.6(1) did not permit a certificate to provide evidence of such fact, the court must satisfy itself that the accused had been arrested other than under a warrant. If this submission was correct it would have had the effect of frustrating and nullifying the clear intention of the section, which was to obviate the need for prosecuting gardaí to attend court.
54. The District Judge sought the opinion of the High Court on the following questions of law:-
(i) Does the proper interpretation of s. 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997, require the District Court to be satisfied that a person has been arrested otherwise than under a warrant prior to admitting in evidence the certificate referred to therein?
(ii) If the answer to question (i) is in the affirmative, does the proper interpretation of s. 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997, require oral evidence of the nature of the arrest to be given, prior to or at the time the certificate is given in evidence?
(iii) If the answers to questions (i) and (ii) are in the affirmative, does the District Court have jurisdiction to make any further order in criminal proceedings where a certificate was admitted in purported compliance with s. 6(1) of the said Act of 1997, in circumstances where no evidence of the nature of the arrest was given?
55. In the High Court, McCracken J. held that the primary rule in construing a section of a statute was to interpret it in accordance with the plain and ordinary meaning of the words used, and that s.6(1) was quite clear in requiring proof that the accused had been arrested otherwise than under a warrant as a condition precedent to the admissibility of the evidence contained in the certificate. He answered questions (i) and (ii) of the case stated in the affirmative, and question (iii) in the negative.
56. On appeal, a five judge bench of the Supreme Court unanimously, although for differing reasons, allowed the appeal answering the first question in the negative and deeming it unnecessary in the circumstances to answer the other two. In her judgment Denham J., as she then was, was prepared to apply a purposive interpretation of the provision, stating:
“The learned trial judge applied the literal rule of interpretation. There is authority that this should be applied even if the result be absurd. Thus Esher L.J. said in R. v. Judge of City of London Court [1892] 1 Q.B. 273 at p. 290:-
‘If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity.’
However, this approach is ameliorated by the golden rule which was described by Blackburn L.J. in River Wear Commissioners v. Adamson [1877] 2 App. Cas. 743 at p.764 as:-
‘I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz., that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear.’
Such an approach enables the court to consider the entirety of the Act or section when the literal interpretation produces an absurdity. This choice was described by Henchy J. in Nestor v. Murphy [1979] I. R. 326 as at p. 327:-
‘To construe the subsection in the way proposed on behalf of the defendants would lead to pointless absurdity.’
The third rule of construction, the Mischief Rule, may also be considered. This rule was described in Heydon’s Case (1584) 3 Co Rep 7:-
‘And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the Common Law), four things are to be discerned and considered:
(1) What was the common law before the making of the Act?
(2) What was the mischief and effect for which the common law did not provide?
(3) What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth?
(4) The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico .’
This rule is now more commonly called the purposive approach. In Pepper v. Hart [1993] AC 593 Griffiths L.J. stated at p. 617:-
‘The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation. . .’
I would concur with this approach. However, no method of interpretation may be such as to encroach on the constitutional role of the Oireachtas as the legislative organ of the State. The rules are applied to interpret the acts passed by the legislature and in so doing afford the respect appropriate from the judicial organ of government to the legislature.
The rules of construction are part of the tools of the court. The literal rule should not be applied if it obtains an absurd result which is pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be read in the section without rewriting the section then that is the appropriate interpretation for the court to take.
Section 6 was introduced by the legislature to enable evidence of arrest, charge and caution be given by certificate if the accused is arrested otherwise than under a warrant. This obviates the necessity of the arresting guard being in court. However, if the arresting guard has to be in court to give evidence that the arrest was otherwise than under a warrant before the certificate is professed in evidence, there is the absurd result that the garda is required to be in court to prove that his presence is not required!
Section 6 is a part of a preliminary process which brings an accused to court and gives jurisdiction to the court. There are a number of ways by which an accused may be brought before the District Court. In general it is not necessary to except other procedures when taking a particular process. I am satisfied that s. 6 may be construed in this fashion too. It is not necessary to negate other processes to utilize this vehicle. The section is an enabling section. The words ‘who has been arrested otherwise than under a warrant’ are descriptive and not a matter requiring oral evidence before the certificate is admissible.
The District Court is entitled to assume that the certificate has been issued in accordance with law and it is admissible of the facts contained therein. If any issue on the certificate arises oral evidence may be given in accordance with s. 6(4) and if any other issue arises it may be taken at the hearing of the action or as the District Judge determines.
In reaching this conclusion, in construing the section in light of the full process, it is an important factor that the purpose of the legislature in passing the section was to enable a certificate to be utilized to avoid the necessity of the arresting guard giving oral evidence of arrest, charge and caution, thus the section is rendered absurd if that same guard is required to give evidence that it was not an arrest by warrant. The intention of the legislature was to avoid the necessity of the garda attending court at this stage of the process.
Also, it is the essence of the matter that there is no question of the trial of the action being on certificate. The procedure is not restricting the accused’s rights in any way. The District Judge has discretion to request oral evidence on arrest, charge and caution under s. 6(4) of the Act of 1997, if justice so requires. In addition, the District Judge has the duty to ensure due process at all times. There is no impingement on the accused’s rights by a failure to have evidence at this initial stage that the arrest was otherwise than under warrant.
On a purposive interpretation of the statute, s. 6(1) does not require an oral history before admitting the certificate as evidence of the matters stated therein. I would uphold the appeal and answer the first question of the consultative case stated in the negative. That being the case, it is not necessary to answer the other two questions.”
57. Counsel for the applicant submits that the traditional aversion to a purposive interpretation is rooted in an abhorrence of the notion that a penal sanction could be created where a literal interpretation did not allow for one – e.g. The People (Director of Public Prosecutions) v Roberts [1987] 1 I.R. 268. However, it was submitted, the provision at issue in the present case, which establishes a right of appeal (or, more correctly, the right to seek a review) in respect of a decision of a court of first instance, does not create a penal sanction.
58. It was submitted that a reading of the Act of 2003 as a whole does not allow for an interpretation which suggests the DPP’s right to seek a review is to be confined to a particular class of cases, such as cases where the defendant is an adult on both the date of sentence and on the date of any re-sentencing on appeal, and cases where the defendant is a child on both the date of sentence and any re-sentencing on appeal. The long title states that it is “an Act to enable the Court of Criminal Appeal to review unduly lenient sentences”.
59. Similarly, a reading of the Criminal Procedure Act 1993 does not seek to limit the right of appeal to people who are either an adult on the date of both sentencing at first instance and re-sentencing following an appeal, or who are a child on both dates. There is nothing in a reading of the Act as a whole which seeks to exclude from children a right of appeal where they are sentenced close to their eighteenth birthday.
60. It was submitted that the number of litigants potentially affected is significant because it is common in the case of child offenders close to their eighteenth birthday for their cases to be expedited in order to allow the child enjoy the protections afforded by the Children Act 2001 when being sentenced. It was submitted that it would be an absurdity that the right of appeal of such a child against an unduly severe sentence would be abolished by a strict interpretation of the relevant statute.
61. We were referred to the fourth edition of Bennion’s Statutory Interpretation where the author opines (at p. 831):
“The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament. Here the courts give a very wide meaning to the concept of ‘absurdity’, using it to indicate virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial or productive of a disproportionate counter-mischief.”
62. This quotation was approved by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Yusef [2008] 4 IR 204, at p.210.
63. It was submitted that the plain meaning of the section is to ensure that the appellate court cannot impose a sentence greater than that imposed in the court below. It was therefore submitted that the court should apply a purposive interpretation to section 2(3) of the Act of 1993 to allow the Court of Appeal to impose a sentence “being a sentence which could have been imposed on him by the sentencing court concerned if it were dealing with the respondent as he now stands.”
64. It was further submitted that this interpretation is consistent with the plain intention of the Oireachtas and decisions of the Superior Courts which provide that, when imposing a sentence afresh having found an error in principle, the appellate court will deal with the circumstances of the offender as he is then rather than on the date of sentencing at first instance.
Section 11 of the Criminal Justice Act 1984
65. Section 11(1) (as substituted by s. 22 of the Criminal Justice Act 2007) of the Criminal Justice Act 1984 (“the Act of 1984”, as amended) provides as follows:
“(1) Any sentence of imprisonment passed on a person for an offence—
(a) committed while on bail, whether committed before or after the commencement of section 22 of the Criminal Justice Act 2007, or
(b) committed after such commencement while the person is unlawfully at large after the issue of a warrant for his or her arrest for non-compliance with a condition of the recognisance concerned,
shall be consecutive on any sentence passed on him or her for a previous offence or, if he or she is sentenced in respect of two or more previous offences, on the sentence last due to expire, so however that, where two or more consecutive sentences as required by this section are passed by the District Court, the aggregate term of imprisonment in respect of those consecutive sentences shall not exceed 2 years.”
66. The applicant has submitted that, as this clearly only applies to a sentence of imprisonment, the sentencing judge was correct in proceeding on the basis that she was not obliged to impose consecutive sentences.
67. However, s.11(4) of Act of 1984 goes on to provide:
“Where a court—
(a) is determining the sentence to be imposed on a person for an offence committed while he or she was on bail,
and
(b) is required by subsection (1) to impose two or more consecutive sentences,
then, the fact that the offence was committed while the person was on bail shall be treated for the purpose of determining the sentence as an aggravating factor and the court shall (except where the sentence for the previous offence is one of imprisonment for life or where the court considers that there are exceptional circumstances justifying its not doing so) impose a sentence that is greater than that which would have been imposed in the absence of such a factor.”
68. The applicant submits that while a strict interpretation of this provision did not bind the sentencing judge (because it was clearly referable to the imposition of a sentence to which sub-section (1) applies, i.e., a sentence of imprisonment), nevertheless it reflected the position at common law which was that the fact that an offence was committed while on bail ought, in general, to be treated as an aggravating factor in the assessment of the gravity of the offence, regardless of what penalty was being contemplated, and not just in cases where a sentence of imprisonment was capable of being contemplated. This was logical because gravity must of necessity be considered before sentencing options are examined. It was submitted on behalf of the applicant that in the circumstances the sentencing judge, although it was not mandatory for her to do so in circumstances where the statute did not apply, was nevertheless entirely correct in treating the commission of the offences while on bail as an aggravating factor.
69. Moreover, it was submitted, if this Court is disposed to accept the applicant’s submission that it should apply a purposive interpretation to section 2(3) of the Act of 1993 so as to allow, upon a re-sentencing, the imposition of a sentence “which could have been imposed on him by the sentencing court concerned if it were dealing with the respondent as he now stands” , then it follows that both s. 11(1) and (4) of the Act of 1984 (as amended) would apply to such a re-sentencing.
Supplementary submissions on behalf of the respondent
70. Counsel for the respondent has submitted that no support can be found in Irish law for what the applicant proposes. We were referred to the position pre the enactment of the Interpretation Act 2005 (“the Act of 2005”), which was based on the common law principle against doubtful penalisation . This principle (which the respondent contends was preserved and bolstered by the exclusionary condition in s. 5(1) of the Act of 2005 which excludes from the ambit of the section any provision that relates to the imposition of a penal or other sanction) was characterised by Kearns J in Director of Public Prosecutions v Moorehouse [2006] 1 ILRM 103 as “a well established presumption in law that penal statutes be construed strictly”.
71. We were also referred to Mullins v Harnett [1998] 2 ILRM 304, in which O’Higgins J quoted with approval from pp. 239 and 240 of Maxwell on the Interpretation of Statutes , as follows:
“the strict construction of a penal statute seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly the words setting out elements of an offence; in requiring the fulfilment of the letter of the statutory conditions precedent to the infliction of punishment; and in insisting on a strict observance of technical provisions concerning criminal procedure and jurisdiction”.
72. It was submitted that this chimes with the primary requirement in Irish law that Courts should give effect to the plain and unambiguous language of the Oireachtas. The search for the “purpose” of the section which is advocated by the applicant fails to acknowledge that the words themselves, plain and clear, are the best explicator of that intent and the first consideration on this issue. It was suggested that what the applicant argues for is a legislative intent, unexpressed in the words of the section, but desired nonetheless by the prosecution authorities.
73. It was submitted that this precise scenario was dealt with by Blayney J in Howard v The Commissioner for Public Works [1994] 1 I.R. 101, at 153, in the following terms:
“It is clear from this that the first condition that has to be satisfied before recourse can be had to construction by implication is that the meaning of the statute should not be plain. It seems to me that that condition is not satisfied here. The meaning is perfectly plain. In the first place, it is provided that permission is required for any development which is not exempted development, and secondly, it is provided in s. 84 that where a statutory authority wishes to undertake the construction or extension of any building it must comply with the terms of that section. What is being suggested is that it is a necessary implication from the terms of s. 84 that the Commissioners should be relieved from complying with section 24. But this conclusion does not result from any difficulty in interpreting section 84. It results from forming a conclusion as to why s. 84 was included in the Act. In other words, it results from coming to a conclusion as to the intention of the legislature without that intention being expressed in the section itself. It seems to me that this amounts to speculation, particularly as, if it had been intended to exempt statutory authorities from having to apply for planning permission for the construction or extension of any building, it would have been a simple matter to provide that development by them should be exempted development.”
74. Blayney J went on to quote Craies on Statute Law in the following terms:
“A general proposition that it is the duty of the Court to find out the intention of Parliament . . . cannot by any means be supported’ said Lord Simonds in 1957. Some fifty years before in Salomon v. Salomon & Co. Ltd. [[1897] AC 22, 38] Lord Watson had said: ‘”Intention of the legislature” is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication’ After expounding the enactment, it only remains to enforce it, notwithstanding that it may be a very generally received opinion that it ‘does not produce the effect which the legislature intended,’ or ‘might with advantage be modified’. The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation: the primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act used the words in dispute.”
75. Blayney J concluded, at p 154, with an excerpt from Maxwell on the Interpretation of Statutes in terms subsequently approved of by Kearns J in the Moorehouse case cited earlier:
“…, but where , as here, the provisions of the sections are quite clear the Court is obliged to give effect to them even if the effect of doing so may not appear to be entirely reasonable.
‘Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the Court as to what is just and expedient: words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the court is to expound the law as it stands, and to leave the remedy (if one be resolved upon) to others'”
76. Counsel for the respondent has submitted that what the Director argues for is not accurately presented as a purposive approach but more correctly amounts to a doctrine of rectifying construction of the statute. It was urged upon us that this is an approach which, even leaving aside the penal context upon which the discussion is premised, has always been deprecated in Irish law as a usurpation of the role of the Oireachtas. In this context we were referred to Bula Ltd (In Receivership) v Crowley [2002] IEHC 4 where Barr J observed(at 863) that:
“It was submitted that both sections are clear and unambiguous in their wording and must be interpreted in accordance with the plain ordinary meaning of the words used, however harsh, incongruous, contrary to common sense or even absurd the result may be. It is for the legislature to remedy any error or unintended consequence emerging from legislation. I have no difficulty in accepting that, subject to long established tenets of construction, words in a statute should be construed in accordance with their plain, ordinary meaning. The Court has no function in remedying error in circumstances where legislation, though clear in its terms, is found to be defective.”
77. It was submitted that the observation of Kearns J in the Moorehouse case (set out at para 49 above), on which the applicant places great reliance, was obiter dictum . In the ratio decidendi of Moorehouse , Kearns J in fact found that the purposive interpretation argued for by the Director in that case would go well beyond mere interpretation. He observed (at p. 126):
“Quite clearly, to give s.13 this extended meaning would of necessity involve judicial rewriting of the statutory provision, which is clearly impermissible.”
78. Kearns J went on to address how such a statutory provision must be interpreted, stating (again at p.126):
“However, I would be of the view that the charge in this particular case, and the conviction recorded in respect thereof, is one which is not provided for by the section and thus by virtue of the requirements to construe such statutes strictly, the answer to [the] sic first question in the case stated must be ‘no’.”
79. The respondent’s side makes the point that the decision in Moorehouse pre-dated the coming into effect of the Act of 2005 which was commenced on the 1st January 2006.
80. “Section 5(1) of the Act of 2005 states:
5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would
fail to reflect the plain intention of—
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”
A possible purposive construction?
81. It was submitted that whilst s.5(1) of the Act of 2005 does not explicitly speak in terms of purposive interpretation, it appears to set out the circumstances in which such an approach would be appropriate and in doing so excludes any provision which “relates to the imposition of a penal or other section” . It was submitted that even in the absence of the specific exemption of penal statutes from the section, the requirement for obscurity, ambiguity, absurdity or plain failure to reflect the intention of the Oireachtas, would mean that no such approach could be taken here without a judicial rewriting of the legislative provision. In any event, it was contended that that is not an argument which arises in the present case as section 2(3) plainly, the respondent suggests, relates to the imposition of a penal sanction.
82. The respondent seeks to distinguish the case of Director of Public Prosecutions (Gda Ivers) v Murphy , on which the applicant relies, on the basis that it was decided prior to the enactment of the Act of 2005. It was further submitted that even if that were not so, the Court in that case was dealing with a wholly different situation and a section which did not relate to the imposition of a penal sanction in all but the most oblique way. The section was described by the Supreme Court as “an enabling section” and the words at issue were held to be “descriptive” by the Court. It was submitted that, in contrast, we are concerned with the terse and unambiguous language of s. 2(3) of the Act of 1993. The respondent maintains that the section is plain in its meaning and with respect to the jurisdiction which it does and does not grant. It is said that the section is utterly fundamental in that it provides jurisdiction to this Court to impose sentence afresh in cases where it has quashed an earlier sentence on grounds of undue leniency.
83. The respondent submits that the applicant’s position is that because no attention appears to have been paid by the legislature to the issue of appeals against, and reviews of, sentences imposed on children; and the situation of children transitioning into adulthood who are sentenced at first instance as child offenders, but who are adults at the time of any required re-sentencing in consequence of an appeal or review; and to the interplay between the very different concepts of detention and imprisonment, particularly in that situation; that this Court should itself draft a new section to deal with this frailty.
84. Furthermore, it is suggested, the applicant appears to proceed on the basis that sentences of detention imposed upon children and sentences of imprisonment imposed upon adults are really just two sides of the same sentencing coin. The respondent contends that any consideration of the Act of 2001 makes it clear that this is not the case and that, were this Court minded to embark on a redrawing of the legislative provisions governing prosecution appeals of child sentences, this would involve the Court engaging in a substantial and nuanced legislative task that it is not the function of the courts to perform, but rather one for the legislature to perform.
S.11 of the Act of 1984
85. The respondent agrees with the applicant’s submission that if the Court accepts the proposition that it enjoys a statutory power to re-sentence the respondent to sentences of imprisonment, then the provisions of section 11 would apply.
86. However, the respondent says, it is in bringing the applicant’s position to its logical extension that one sees clearly the folly of the overall approach, i.e., that having been sentenced at first instance by the sentencing judge to concurrent sentences of detention, the respondent is now in a position, through no fault of his own, where he must receive mandatory consecutive sentences for precisely identical offences, notwithstanding that they were committed when he was a child. This has the effect that an accused person must necessarily receive a longer aggregate sentence where a final sentence is imposed on appeal, than had the final sentence been imposed at first instance. Prima facie this would offend the principle encapsulated in the Latin maxim nullum crimen sine lege, nulla poena sina lege , which literally means “no crime without law, no penalty without law”. It embraces the idea that a person may not be convicted in respect of conduct which was not an offence at the time of its commission, and more relevantly in the present context, that a person must not be subject to a heavier penalty than one that could have been imposed when the offence was committed. Moreover, this is in circumstances where the Act of 2001 makes it clear that a sentence of detention ought only to be imposed as a last resort. It is acknowledged by the respondent that the applicant does nod in the direction of the principle of totality but the respondent submits that what would be required to avoid this pointed unfairness would stretch the concept of totality out of all recognition in order to provide a makeshift cure.
87. The respondent says that if lacuna there be in the statutory scheme for sentence appeals, then it is for the Oireachtas to remedy it.
The decision in Director of Public Prosecutions v A.S.
88. Finally, the respondent places heavy reliance on this Court’s decision in Director of Public Prosecutions v A.S. , cited earlier. The respondent maintains that the clear statement of the Court in A.S. – that the Act of 2001 was intended to provide a new system of juvenile justice – makes it abundantly clear that, insofar as that Act failed to provide for the complex interaction between child sentencing and the statutory appeals system, that is an omission not amenable to resolution by the Courts.
The Court’s decision on the statutory interpretation issue
89. We have given careful consideration to the arguments on both sides, but ultimately find ourselves in agreement with the submissions on behalf of the respondent.
90. In the first instance, the wording of s. 2(3) of the Act of 1993 is clear and unambiguous. The jurisdiction of the Court in re-sentencing following a finding of undue leniency is limited to the imposition of “a sentence which could have been imposed on him [i.e., the respondent to the undue leniency application] by the sentencing court concerned”. This was a case that called for a custodial or carceral sentence, notwithstanding that the respondent was legally a child at the time that he was being sentenced. On the basis that a custodial or carceral sentence was called for, the only sentences of that variety that could have been imposed by the court below was either a sentence of detention in a child detention centre simpliciter , pursuant to s.142 of the Act of 2001; alternatively, a detention and supervision order pursuant to s.151 of the Act of 2001. S. 156 of the Act of 2001 prohibits the imposition of a sentence of imprisonment upon a child. A sentence of detention in a child detention centre simpliciter for a period of three years was in fact imposed, although the position was complicated by the purported partial suspension of two thirds of that sentence.
91. In circumstances where this Court is required to re-sentence, it is confined to the imposition of “a sentence which could have been imposed on him by the sentencing court concerned”. The difficulty, however, is that the respondent is no longer a child and it is not possible to sentence an adult to detention in a child detention centre, or for that matter to a period of detention and supervision. If s.2(3) of the Act of 1993 is to be interpreted literally, there is therefore no legal means of re-sentencing the respondent to a custodial sentence.
92. We do not consider that this is an absurd interpretation. It is an inconvenient interpretation, certainly, and has far reaching implications, but it is not absurd. Even if in principle it were possible to afford a provision such as s. 2(3) of the Act of 1993 a purposive interpretation based upon inferring the true intention of the legislature, the circumstances of this case would preclude engagement in any such exercise. This is because the Act of 1993 predates the Act of 2001 by approximately eight years. As Professor Dermot Walsh points out in his textbook, “Juvenile Justice” (Thomson Round Hall: 2005), at paras 1-09 to 1-10, it was not until 1995 that the heads of a Children Bill were prepared. The bill was eventually published as the Children Bill, 1996, but did not survive the lifetime of the government that introduced it. Following a general election and the formation of a new government, it was replaced in modified form by the Children Bill 1999, before being eventually enacted in yet further modified form as the Children Act, 2001.
93. It could not seriously be contended that the legislative framers of the Act of 1993 could have had in mind legislation that had not yet been introduced, much less enacted, when they drafted s.2(3) of the Act of 1993. It was of course for the legislature when enacting the Act of 2001, to ensure that it was reconcilable with the Act of 1993, and other legislation governing criminal appeals such as the Criminal Procedure Act 1993. This could have been done by including relatively straightforward amendments to the relevant provisions of the Act of 1993 and the Criminal Procedure Act of 1993, respectively, in the Act of 2001. However, the legislature did not do so (presumably due to the fact that the potential difficulty that has now arisen was not adverted by anybody in a position to suggest such amendments), and the consequence of failing to do so is the present conundrum. However, the existence of such a conundrum would not justify this Court in disregarding the separation of powers and in engaging itself in judicial legislation. This Court cannot re-write the clear terms of s.2(3) simply because later legislation was enacted which has the effect of rendering it in effect nugatory in particular circumstances. The fix that is required is a legislative one, not a judicial one.
94. Quite apart from all of that, although the Act of 1993, and the particular provision at issue, do not operate to create a penal sanction in the narrow sense of that expression, the legislative scheme they give effect to is undoubtedly penal in nature. They operate to fundamentally recalibrate the system of appeals/reviews that had existed from the foundation of the State up to that point. Up until the enactment of the Act of 1993, there was simply no provision in law for the Director of Public Prosecutions to request the review of a sentence on the grounds that it was unduly lenient. The change effected by the Act of 1993 was undoubtedly going to be to the potential prejudice of persons to whom the Act would apply; and so, the argument has been advanced that it ought to be afforded a strict construction on the basis of long standing common law rules of statutory interpretation, and in particular the principle against doubtful penalisation according to which nobody should suffer a detriment by application of a doubtful law. The principle against doubtful penalisation has been recognised as applying not just to detriment in the sense of a penalty or a sanction imposed by the criminal law, but as applying to any form of detriment which is required to be inflicted, whether criminally or civilly by a court, or administratively by some other person or entity, in consequence of an enactment. To succeed, such an argument would require a judicial finding that the common law principle of doubtful penalisation survived the enactment of s.5 of the Act of 2005, and that s.5 simply reflects and gives statutory recognition to the longstanding common law rule. However, it must also be acknowledged that a counter argument is possible to the effect that, because the excluding proviso in s.5 refers only to “the imposition of a penal or other sanction” , it is ostensibly narrower in its scope than the pre-existing common law canon of construction based on the principle of doubtful penalisation, and that the wider pre-existing rule has been supplanted by the narrower statutory rule. This is not the first time that the issue of the implications of s.5 of the Act of 2005 for the pre-existing common law rule against doubtful penalisation has arisen for judicial consideration, although the issue has not be definitively determined to date . See the discussion in that regard in Minister for Justice and Equality v Vilkas [2018] IECA 33 at paras 91 to 93 of the judgment.
95. We do not consider that it is necessary for us to resolve this controversy in circumstances where, even if s.5 of the Act of 2005 has supplanted the pre-existing common law rule, the other conditions necessary for s.5 to apply so as to permit a purposive interpretation simply do not exist. The provision is not ambiguous. Neither is the provision absurd. Moreover, in circumstances where the Children Act 2001 was not even in contemplation at the time of the enactment of the provision at issue, no clear intention on the part of the Oireachtas is capable of being inferred as to how it should operate in the context of the new system of juvenile justice that has since been put in place.
96. Accordingly, in circumstances where we are satisfied that s.2(3) of the Act of 1993 is not capable of being afforded the purposive interpretation that the applicant contends for, we consider that we are unable to proceed to a quashing of the respondent’s existing sentence or to a re-sentencing of him; notwithstanding that we are satisfied that the sentences imposed by the court below were unduly lenient.
97. Since it is not possible for us to proceed to a re-sentencing on the present state of the law, the issue as to how s.11 of the Act of 1984 might apply to a case such as the respondent’s on a re-sentencing is moot, and it is unnecessary for us to express any view on it.
98. In circumstances where this Court’s hands are tied by the need to respect the constitutional separation of powers, it falls to the legislature to address the lacuna in the law that has been identified as soon as possible.
The People v M.
[1994] 2 ILRM 541 Egan J
On 27 November 1992 the appellant was sentenced to the following terms of imprisonment following his pleas of guilty in the Central Criminal Court.
Count 3: Buggery with a male person on a date unknown in 1989 contrary to s. 61 of the Offences Against the Person Act 1861.
Sentence imposed: 18 years’ penal servitude.
Count 13: Buggery with the same person on a date unknown in May 1990 contrary to the same section.
Sentence imposed: 18 years’ penal servitude.
Count 20: Buggery with another male person on a date unknown in autumn 1989 contrary to the same section.
Sentence imposed: 18 years’ penal servitude.
Count 30: Indecent assault on a date unknown in the first week of November 1991 contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990.
Sentence imposed: Four years’ imprisonment.
Count 43: Indecent assault on a male person contrary to s. 62 of the Offences Against the Person Act 1861.
Sentence imposed: nine years’ imprisonment.
Count 44: Indecent assault on a male person on a date unknown between January 1985 and December 1985 contrary to s. 62 of the Offences Against the Person Act 1861.
Sentence imposed: Nine years’ imprisonment.
Count 61: Sexual assault on a date unknown in February 1991 by the insertion of his penis in the anus of another person contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990.
Sentence imposed: 18 years’ imprisonment.
Count 62: A similar sexual assault on a date unknown in September 1991 on the same person.
Sentence imposed: 18 years’ imprisonment.
The appellant now appeals to this Court against the severity of these sentences.
The appellant was at the time of the commission of the said offences a brother in religion and the victims of the assault were young boys at the school at which he was teaching. They were aged between ten and twelve years at the times of the commission of the various offences.
The notice of appeal sets out three grounds:
(a) That the sentences passed by the learned trial judge were excessive and inappropriate having regard to the circumstances of the case.
(b) That the learned trial judge erred in the circumstances of the case in failing to permit the appellant to complete a course of treatment being undergone by him in relation to his offences either as an alternative to or prior to the imposition of a custodial sentence upon him.
(c) That the learned trial judge erred in law in finding himself constrained in the circumstances of the appellant’s case by the decision of this Court in the case of People (DPP) v. Tiernan [1988] IR 250.
Ground (b) was not pursued as the court was informed that treatment is no longer available in the institution where the appellant had been getting attention. The arguments which were advanced to the court on behalf of the appellant were to the effect that no weight or no sufficient weight had been given by the learned trial judge to many mitigating factors which can be summarised as follows:
1. The appellant’s age. I will refer to this later.
2. The background of the appellant who entered into religious life at a very early age, his work as a teacher in religious communities of only two or three members which meant that he did not have the support of a large community thus indicating an isolated life.
3. When confronted with allegations in reference to misconduct with two of the six boys involved in this case, he admitted his guilt.
4. He gave considerable assistance to the gardaí by making written confessions in regard to the other four boys involved without which the learned trial judge accepted that perhaps some of the charges preferred against the appellant might not be sustainable.
5. He committed himself apparently wholeheartedly to psychiatric treatment when it was available.
6. He has shown remorse and this was accepted by the learned trial judge.
7. Imprisonment is particularly difficult for a child abuser and the appellant for his own protection, had to spend a period in solitary confinement.
8. The community of which the appellant is a brother is strongly committed to him and to helping him and supervising him when he leaves prison.
9. He has shown strength of character by coping successfully with the problem of alcoholism.
It was also urged before the learned trial judge that paedophilia was a disease and this was accepted by him. There was no evidence, however, to suggest that it was incapable of control and the fact of there being a strong element of compulsion in the condition highlights the necessity of protecting young children from the resulting misconduct.
There can be no doubt whatever but that the appellant committed very serious offences. The majority of the six children involved have been disturbed and damaged and will require continued psychiatric counselling. It must also be remembered that there was an appalling breach of trust by the appellant towards the parents of the boys and the six innocent boys themselves.
To my mind the most important mitigating factor in the case is the fact that the appellant admitted his guilt promptly and has pleaded guilty at his trial. This Court recognised that this was an important mitigating factor in cases of rape: People (DPP) v. Tiernan [1988] IR 250. It is only right and proper that this should be so as many victims of rape endure considerable worry about the prospect of giving evidence in court and refuting allegations that they are not telling the truth. In regard to very young boys the worry about giving evidence would be at least as bad, if not worse.
Another factor in the case is the question of the likelihood of a recurrence of the misconduct on the release from prison of the appellant. During the years when the offences were committed he was constantly in the company of young boys who were an undoubted temptation for him having regard to his propensities. If he returns to his religious community his superiors will see to it that he will not have the same opportunities and, should he seek a post elsewhere, it would seem unthinkable that a reference would not be sought from his present superiors.
His age, to which I have already referred, appears to me to be relevant. The appellant at the time he was sentenced in the Central Criminal Court in November 1992 was just over 50 years of age. If he were to serve the sentence imposed on him on that occasion in regard to the more serious counts on which he appeared without making any allowance for remission of sentence due to good conduct he would be 68 years of age when he left prison. If one makes an assumption that he would earn a maximum remission by good conduct his age on release might be in the mid 60s.
As was stated in the judgments of the Court of Criminal Appeal in People (Attorney General) v. O’Driscoll (1971) 1 Frewen 351 and in People (Attorney General) v. Poyning [1972] IR 402 an essential ingredient for consideration in the sentencing of a person upon conviction, in any case in which it is reasonably possible, is the chance of rehabilitating such person so as to re-enter into society after a period of imprisonment. This is clearly not a case in which it could be said that there is no reasonable possibility of the accused re-entering society as a rehabilitated member of it after a substantial period of imprisonment.
One of the ingredients in that possibility of rehabilitation clearly would appear to be the maintenance during the period of imprisonment involved of an element of hope and of something to look forward to which gives motivation for the self-improvement and rehabilitation necessary. This has been described in some of the literature as the light at the end of the tunnel.
In my view, it follows from these considerations applied to the facts of this case that the stage at which the accused would, having regard to the sentence imposed re-enter into society, and the age he would be at that time and on normal expectation of life the period remaining of life in front of him would all be material matters.
Viewed in the light of this when added to the matters already referred to it would seem to me that some significant reduction in the maximum sentence imposed would be appropriate and that there has been in the form of the sentence imposed an error in principle.
The Chief Justice in Tiernan’s case (supra) stated as follows (at p. 254):
Having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.
The learned trial judge took the view that this was ‘the worst case to come before the Central Criminal Court’ to his knowledge. I find it difficult to agree with this. There have been many cases of brutal and violent murders, rapes (including Tiernan’s case) which would be regarded by many people as being even more serious.
There was no evidence or suggestion of brutality or violence in the present case and although, as previously stated, it is a most serious case, it would seem that the very extreme view taken by the learned trial judge undoubtedly coloured his assessment of the appropriate sentences. This is instanced by the fact that in counts where a maximum sentence of ten years was permissible, he imposed sentences of nine years. A reduction of 10% does not appear to me to be a sufficient recognition of the requirement to mitigate.
It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made.
Having regard to the foregoing I am satisfied that the sentences imposed by the learned trial judge were excessive and should be reduced as follows:
Counts 3, 13, 20, 61 and 62
The reduction in each case should be from eighteen years to twelve years.
Counts 43 and 44
The reduction should be from nine years to seven years.
Count 30
The reduction should be from four years to three years.
DENHAM J
(Finlay CJ, O’Flaherty and Blayney JJ concurring): This is an appeal by the accused/appellant, hereinafter referred to as the appellant, against the sentences passed by the learned trial judge on 27 November 1992 on the grounds that the sentences were excessive and inappropriate having regard to the circumstances of the case.
The facts have been fully stated in the judgment of Egan J and it is not necessary to repeat them. The appellant was before the Central Criminal Court on an indictment containing 68 charges of illicit sexual activities with boys in the school in which he was a teacher. He pleaded guilty to eight of the counts and received a sentence in relation to each, which sentences ranged from 18 years’ penal servitude to four years’ imprisonment.
Proportionality
Sentences should be proportionate. Firstly, they should be proportionate to the crime. Thus, a grave offence is reflected by a severe sentence.
The facts of this case indicate grave offences by a person in a position of trust committed over years in an escalating cycle of abuse to six boys. It was a planned system of extensive child abuse typical of the compulsive behaviour found in paedophilia. Child abuse is a gross attack on human dignity, bodily integrity and a violation of constitutional rights.
The nature of the offences would attract immediate and long custodial sentences. Thus, the sentences imposed by the learned trial judge are not intrinsically wrong in principle.
However, sentences must also be proportionate to the personal circumstances of the appellant. The essence of the discretionary nature of sentencing is that the personal situation of the appellant must be taken into consideration by the court.
In People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351 at p. 359 Walsh J stated:
The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case — not only in regard to the particular crime but in regard to the particular criminal.
In a similar vein there is constitutional protection. In State (Healy) v. Donoghue [1976] IR 325 at p. 353 Henchy J stated that the Constitution guarantees that a citizen shall not be deprived of his liberty by a trial conducted so as to shut out ‘a sentence appropriate to his degree of guilt and his relevant personal circumstances’.
Thus, having assessed what is the appropriate sentence for a particular crime it is the duty of the court to consider then the particular circumstances of the convicted person. It is within this ambit that mitigating factors fall to be considered. I shall return to them at a later stage in the judgment.
The victims
Sentencing is neither an exercise in vengeance, nor is it the retaliation by victims on a defendant. However, the general impact on victims is a factor to be considered by the court in sentencing. See People (DPP) v. Tiernan [1988] IR 250 at p. 253 where the Chief Justice recited effects of the crime of rape on victims.
In this case the learned trial judge had before him reports on five of the children furnished by the childcare experts from the appropriate health board area. He found that one child’s parents declined medical assistance but of the five others one child will require long term counselling and support with his schooling; one child has improved and continues to have counselling; one child is very disturbed and is a damaged child and will require long term and regular counselling and it is feared that he will have long term negative effects resulting from the abuse; one child has serious continuing psychiatric problems and will need regular on-going counselling with a fear that he will have long term negative effects resulting from the abuse; and one child has equally serious problems requiring long term counselling together with a serious guilt burden associated with a long period of abuse going into years.
The nature of the crime, and the personal circumstances of the appellant, are the kernel issues to be considered and applied in accordance with the principles of sentencing, for this is an action between the State and the appellant and not an action between the appellant and the victims.
Conflicting principles
Sentencing is a complex matter in which principles, sometimes being in conflict, must be considered as part of the total situation. Thus, while on the one hand a grave crime should be reflected by a long sentence, attention must also be paid to individual factors, which include remorse and rehabilitation, often expressed, inter alia, in a plea of guilty, which in principle reduce the sentence.
Preventative sentencing
In contemplating the sentences it is appropriate to consider the offences and their nature and their circumstances, but this is not done for the purpose of determining whether the appellant should be incarcerated for the future so as to prevent him commiting further offences: he is sentenced solely for the offences before the court. In People (Attorney General) v. O’Callaghan [1966] IR 501 at p. 516 Walsh J stated:
In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.
Mitigating factors
Having established the gravity of the offence and thus the nature of the punishment in principle, I now return to consider the severity of sentence in view of the particular circumstances of the case. The question is whether the learned trial judge erred in principle in determining the length of sentence by not taking into account, or not taking into account adequately, the particular circumstances of these offences, including the mitigating factors.
1. Plea
The first and most important mitigating circumstance of the appellant is his plea of guilty, which was an early plea and which was followed up by a further statement relating to other offences. It is settled law that an early admission is a mitigating factor in the offence of rape: People (DPP) v. Tiernan. I am satisfied that it is of equal importance in the offences of child abuse including buggery under s. 61 of the Offences Against the Person Act 1861 and rape under s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. Even with modern legal procedures the trauma of anticipating and ultimately going to court are serious concerns for children and it is a sound policy to shield them, if appropriate, from the necessity of the court procedure including as it does cross examination. Thus, a plea of guilty may be an important mitigating factor, which is further enhanced by an early indication that it will occur. The amount of mitigation will depend on the circumstances, including the likelihood of conviction if there had been no plea. There may be circumstances where a plea is discounted, for example where the accused is caught in flagrante delicto and his conviction is not a matter for doubt. However, the plea in this case was not such.
2. Personal circumstances, including age
The personal circumstances, including age, of the appellant must be considered and may be a mitigating factor. In this case they indicate a life of personal isolation. The appellant joined the religious order when he was 13 years old, had a very protected unnatural and isolated youth with minimal contact with his family, members of the opposite sex and the national community; in fact he was brought up in a regime not now followed. He then spent his working life as a member of the order teaching in provincial towns and living, not in a large supportive religious community, but in local religious communities of two or three members. The isolation of his life is a factor in his personal circumstances.
In addition I agree with Egan J that the age of the convicted person may be a ground for mitigation. In this case the appellant will be in his final trimester of life when he is considered for remission. Age is thus relevant to the concept of keeping the light at the end of the tunnel visible, with the consequent effect on motivation and rehabilitation.
3. Propensity
The appellant has expressed genuine remorse and has undergone treatment to attempt to control his behaviour. He has indicated a willingness to undergo assistance to learn to control his propensity for paedophilia. His previous record indicates that he will strive to be successful. Any such programme in aid of the appellant is a matter not only in ease of the appellant, but is of importance to the community. Thus, his recognition of the situation indicates a step toward control and toward rehabilitation. In this context the safety net afforded by his order is another relevant factor.
4. Undertaking by order
On his release the appellant will be returning to his order, who will look after him. The provincial of the order to which the appellant belongs gave an undertaking to the High Court on behalf of the order that the appellant will never teach again and that he will never again be in a position of power in relation to children or have access to children. Thus, he will be returning to a community where he will have no access to children.
The appellant has indicated his firm wish to remain in the order and so long as that is his wish he will be kept and looked after by them. If for any reason he determines not to remain a member of the congregation the order will continue to look after his welfare. This safety net which will hold the appellant on his release is a relevant factor.
Taking into account the previously related factors and viewing these very serious offences in their particular circumstances, I am satisfied that the learned trial judge did not take into account sufficiently the mitigating factors and that he erred in principle in determining the length of sentences.
I agree with Egan J as to the sentences to be imposed.
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.