Sentencing General
Cases
O’Shea v. Ireland
[1998]
IESC 23 (29th July, 1998)
Judgment (ex-tempore) delivered on the 29th day of July, 1998, by O’Flaherty J.
This is an appeal by applicant herein from the order of Kelly J. of 27th March, 1998, refusing him leave to apply for an order pursuant to Article 40.4.2° of the Constitution. The applicant is currently serving forty years penal servitude, having been previously sentenced to death upon conviction of the capital murder, in 1980, of a member of an garda siochana in the course of his duty, the said death sentence having been commuted by the President of Ireland on the advice of the government.
1. The applicant sought an enquiry under Article 40.4.2° of the Constitution on the grounds that:
(1) The actions of Ireland through its operation of the Offences Against the State Act, 1939, and of the President of Ireland are
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contrary to the Treaty for European Union, the International Bill of Human Rights, the law and Constitution, and
(2) The Presidential order, by which he is currently imprisoned, is bad on its face, in that it cites no authority or law.
2. Mr. Justice Kelly in course of his judgment rejected both of these grounds. As regards the first one, he said he could find no basis in law for the complaint and refused to order an enquiry into the legality of the applicant’s detention.
3. As regards the second he said:
“In making the order that he did the President clearly exercised his entitlement under Article 13.6 of the Constitution which reads: –
‘The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities.”‘
4. The learned High Court judge goes on to say:
“The power to commute or remit punishment in capital cases can only be exercised by the President, acting on the advice of the Government. I reject the contention that the Presidential order is bad on its face because it does not cite any authority or law. It
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does not have to. I also reject the other complaint that is made under this heading.”
5. That was the learned High Court judge’s conclusion. I think he was right in all respects and I would dismiss the appeal.
The People (DPP) v. Finn
Supreme Court November 24, 2000
D.P.P. v. Finn [2000] IESC 75; [2001] 2 IR 25 (24th November, 2000)
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JUDGMENT OF THE COURT DELIVERED ON THE 24TH DAY OF NOVEMBER 2000 BY KEANE C.J. [Nem Diss.]
The factual background
This is an appeal brought by the defendant pursuant to s. 3 of the Criminal Justice Act, 1993 from the determination by the Court of Criminal Appeal of an application under s. 2 of that Act, the court having certified that its determination involved a point of law of exceptional public importance and
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that it was desirable in the public interest that an appeal should be taken to this court.
1. The applicant was convicted by the Central Criminal Court (Lavan J.) on a plea of guilty in respect of charges of
(a) rape contrary to s. 48 of Offences Against the Person Act, 1861 as amended by s. 2 of the Criminal Law (Rape) Act, 1991 and
(b) assault occasioning actual bodily harm contrary to s. 47 of Offences Against the Person Act, 1861.
2. The details of the rape and the assault were as follows. The applicant and the injured party, M. were on the beach at Rosses Point, Co. Sligo in the early hours of the 18th January 1996. M. made what is accepted to have been an innocent remark as to the applicant not being the father of his girl friend’s child. He thereupon subjected her immediately to a physical assault of such ferocity that she suffered relatively serious injuries and was rendered unconscious. While she was lying unconscious on the beach, he then raped her. When she recovered consciousness, he brought her to a nearby house under the pretence that she had been assaulted by someone else and that he (the applicant) was, as it were, coming to her rescue. M. was not aware that she had
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been raped and did not become so aware until a subsequent medical examination showed evidence of semen in her vagina.
3. The applicant, when first questioned by the gardaí, admitted to having assaulted M. when she made the comment about his girlfriend. In his second statement, he admitted to the rape. It is clear from the Victim Impact Report furnished to the Central Criminal Court that, in addition to the physical injuries she sustained, her ordeal had significant psychological consequences for M. She was particularly concerned that the applicant should be imprisoned for what he had done, not simply because she thought he should be punished, but because she was afraid of what might happen to her if he were at liberty.
4. At the stage when sentence was imposed by the Central Criminal Court, the court had before it reports from a probation and welfare officer and a psychiatrist. From them it appeared that the applicant, who was then aged 21, came from a significantly disturbed family background, although he had done well at school. His problems derived from the fact that his father died when he was only 10 months old and that his mother’s second husband was abusive and violent on a regular basis, both towards her and her children, including the applicant. He appeared to have a good relationship with his girlfriend, with
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whom he lived in a flat and with whom he had a child who was three weeks old at the date of the offences to which he was now pleading guilty.
5. The learned High Court judge approached the imposition of the sentence with considerable care. Having been addressed in detail by counsel for the prosecutor as to the circumstances of the offences, he heard the evidence of the investigating Garda sergeant, of the applicant’s mother and girlfriend and of the applicant himself and then heard submissions from counsel for the applicant and counsel for the prosecutor.
6. Before imposing sentence, the trial judge referred to the principles by which he considered himself bound, as laid down by this court and the Court of Criminal Appeal. He said that, as to the facts of the present case, he was satisfied that the injured party, as he put it, had been beaten “to within an inch of her life”. He also accepted entirely the conclusions in the Victim Impact Report as to the long term effects which this had had on M. He said that he was bearing in mind fully the mitigating factors in the case, i.e. that the applicant, having subjected the girl to this appalling ordeal, was sufficiently conscious of what he had done to seek assistance for her, that he made a full confession and had pleaded guilty, that he had no previous convictions and had to be regarded as being of blameless character until the night of the assault and
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that he had also entered the witness box and given sworn evidence as to his remorse for what he had done. The trial judge also accepted that the applicant’s family would have been prepared to pay compensation, so far as their means allowed, to M. but that M. and her family were not prepared to accept such compensation, a decision which the trial judge said that he understood and respected.
7. The trial judge concluded that the appropriate sentence in this case was one of seven years’ imprisonment in respect of the first count and three years’ imprisonment in respect of the second count. He also said, however, that, having regard to the factors to which he had referred, he would order the case to be re-listed before him, at which stage he would consider “reviewing how I will deal with the remainder of the sentence”. He made it clear to counsel that, since he was aware of the limited resources available in the form of a sex offenders programme in the prison system, he would strongly recommend that, if that programme were not available to the applicant, his family should make arrangements that other professional care would be available to him. He said that he would, accordingly, hear evidence at the review date as to the conduct of the applicant in prison and the counselling which he had undergone and he would also require a report at that stage on the injured party.
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8. When the matter came before the court again on October 22nd, 1998, a further Victim Impact Report was produced. M. had seen a psychologist for the first 12 months of the period, but not during the past 12 months because she did not want to take time off work. She said that, while she was getting on with her life, she was in constant fear of a similar event happening to her and was scared because of the possibility of the applicant being released from prison. She had a particular fear that he might come back to Sligo and endeavour to make contact with her, in which case she would have to leave the town, which she did not wish to do.
9. There was also a report before the trial judge of Mr. Paul Murphy, a clinical psychologist concerned in the Sex Offenders’ Programme in Arbour Hill prison. While that report concluded that the applicant had co-operated consistently in the programme and had good support available to him from an uncle and from his girlfriend, it also said that it was important that there should be ongoing therapeutic work with him and his girlfriend in order to address significant therapeutic issues that became apparent during the programme. The report also concluded that the applicant needed to have “ongoing supervision in the community and access to appropriate professional support”.
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10. During the course of this hearing, the trial judge indicated to counsel for the applicant his concern that, if the applicant were released, he should under no circumstances return to Sligo, having regard to the security implications for the injured party and the anxieties that she had expressed. The applicant gave evidence that he was prepared to reside with his uncle in Longford, to give an undertaking that he would not cross the Shannon or go anywhere near Sligo and that he would avail of ongoing therapy. He then gave a voluntary undertaking not to visit the county of Sligo until the 10th December 2003, to reside with his uncle and to arrange for ongoing supervision in the form of therapy. The trial judge then went on:
“On the basis of the undertakings that the accused has sworn on evidence given before me, I am prepared to release him. The court has to balance the possibility of his being regenerated into the future. He is a young man. It has to afford him hope that he can address his future from here on in.”
11. The trial judge accordingly released the applicant but directed that the case should be listed again in three months time so that the judge could be told of the position as to supervision. There was in fact a further hearing on April 14th at which the trial judge heard evidence from the applicant that he was living in Longford with his girlfriend, that he was doing a two-year computer
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course in that town, that he had had no contact with the injured party and that he was under the care of Mr. Ryan O’Neill, a psychologist with the Midland Health Board. He said that Mr. O’Neill had been informed of the circumstances of his case by Mr. Paul Murphy who had attended their first meeting. The trial judge, having heard this evidence, suspended the balance of the two sentences, subject to the conditions imposed by him at the earlier hearing.
The application to the Court of Criminal Appeal
12. On the 18th November 1998 the prosecutor gave notice of an application to the Court of Criminal Appeal pursuant to s. 2 of the 1993 Act
“to review the sentence passed upon the accused herein on the 22nd day of October 1998 by the Central Criminal Court, the Honourable Justice Lavin (sic).”
13. The notice of application said that:-
“It is submitted that the sentence imposed on the 22nd of October, 1998 is unduly lenient having regard to all the circumstances of the case, including:
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the gravity of the offence, the unprovoked nature of the assault, the severity of the violence inflicted on the injured party, the Victim Impact Report submitted to the court, the oral evidence submitted to the court by a member of An Garda Síochána in 1996 and 1998, and in particular the contents of the report prepared by Paul Murphy, clinical psychologist at the Department of Justice dated the 15th of October 1998, together with a transcript of the evidence tendered before the Central Criminal Court and the judgment of the Central Criminal Court.”
14. When this application came before the Court of Criminal Appeal, counsel for the applicant objected that it was out of time, not having been made within 28 days from the day on which the sentence was imposed as required by s. 2 of the 1993 Act. In a short ex-tempore judgment delivered on the 14th June 1999, the court rejected that objection. It then proceeded to deal with the application itself and, again in a brief ex-tempore judgment, the court acceded to the prosecutor’s application and substituted for the sentence imposed in respect of the charge of rape a sentence of six years’ imprisonment, with no suspension in respect of either of the sentences.
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15. On the application of counsel for the applicant, the court then certified that it was in the public interest that an appeal should be taken to this court on the point set out in a certificate, i.e.
“was it permissible for the DPP to appeal against the undue leniency of the said sentences pursuant to s. 2 of the Criminal Justice Act, 1993 when no application was made until almost two years after the original sentence was imposed?”
Submissions on behalf of the applicant
16. Mr. Blaise O’Carroll, S.C., on behalf of the applicant, submitted that the words of the statute in this case should be literally construed and given their ordinary and natural meaning. So construed, the time limit for the purpose of an appeal was “28 days from the date on which the sentence was imposed”. He submitted that that could only refer to the 10th December 1996 when the sentence was imposed by the Central Criminal Court.
17. Mr. O’Carroll submitted that the definition of “sentence” in s. 1 of the 1993 Act did not include a review of the sentence, which was a process occurring after sentence aimed primarily at the rehabilitation of the offender. He further submitted that, since the review of sentences was a feature of the
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criminal justice system which had been in existence for a number of years prior to the coming into force of the 1993 Act, the legislature, if it intended to include such reviews within the scope of the expression “sentence imposed by a court” in s. 2 would have done so in clear and unambiguous language.
18. Mr. O’Carroll further submitted that the prosecutor was not precluded from appealing a decision of a court to impose a sentence subject to its being reviewed within a specified time, on the ground that it appears to him that such a sentence is “unduly lenient”. The Director of Public Prosecutions is represented in court when the sentence is imposed and will be aware that, when a sentence provides for a review within a specified period, the probability is that, if the offender complies with any conditions laid down by the trial judge, he or she will be released on the review date with the balance of the sentence being suspended. He said that the Director of Public Prosecutions had implicitly accepted that the appropriate course for him to take where it appeared to him that the provision for a review date in the sentence was unduly lenient was to apply to the court under s. 2 of the 1993 Act for a finding to that effect within the 28 days provided for in the Act, as he had done in the case of The State at the prosecution of the Director of Public Prosecutions .v. James Kelly (unreported: judgment delivered 3rd July 2000).
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19. On behalf of the prosecutor, Mr. Peter Charleton, S.C. said that the appeal on the point of law as certified by the Court of Criminal Appeal raised issues of fundamental importance as to the entire review procedure on which the Director was anxious to obtain guidance from this court.
20. Mr. Charleton submitted that the date “on which the sentence was imposed” within the meaning of s. 2(1) of the 1993 Act was the 22nd October 1998, since it was only at that stage that the order of the Central Criminal Court disposing of the case was finalised. An application by the prosecutor within the period of 28 days from the 10th December 1996 would have been premature, since at that stage the Central Criminal Court had not given any indication as to what course of action it proposed to take on the review date. In circumstances where a trial judge effectively adjourns a case pending a review of a sentence -as happened here – he necessarily continued to exercise a jurisdiction affecting the operation of the sentence. In those circumstances, the sentence could not be said to have been “imposed” within the meaning of the legislation until the review date.
21. A term of imprisonment was the period fixed by the judgment as the punishment for the offence and, accordingly, a sentence was not “imposed” until such time as the term of imprisonment was actually fixed. He cited in this
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connection observations of Dixon C.J. in the High Court of Australia in Windsor .v. Boaden (1953) 90 CLR 345 at 347. As to the meaning of the word “imposed”, it was submitted that this connoted an action taken unilaterally by the court rather than an action voluntarily undertaken by the accused in a case and, accordingly was an appropriate use of language to describe what happened at the review stage.
22. Mr. Charleton further submitted that it was clear from the decision of this court in O’Brien .v. The Governor of Limerick Prison [1997] 1 ILRM 349 that where a judge provides for a review of a sentence imposed by him at some future date he or she retains seisin of the case. He said that it was a logical consequence of that finding that such a case could not be regarded as finally disposed of until such time as the review procedure was completed by the court of trial.
The applicable law
Section 2 of the 1993 Act provides that:
“(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the ‘sentencing court’) on conviction of a person on indictment
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was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.
(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the date on which the sentence was imposed.”
Section 1(1) of the Act provides that:
“In this Act, unless the context otherwise requires -‘sentence’ includes a sentence of imprisonment and any other order made by a court in dealing with a convicted person other than
(a) an order under s. 17 of the Lunacy (Ireland) Act, 1821 or s. 2(2) of the Trial of Lunatics Act, 1883, or
(b) an order postponing sentence for the purpose of obtaining a medical or psychiatric report or a report by a probation officer
Article 13.6 of the Constitution provides that
“The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction
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are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities.”
Section 23 of the Criminal Justice Act, 1951 provides that
“(1) except in capital cases, the government may commute or remit, in whole or in part, any punishment imposed by a court exercising criminal jurisdiction, subject to such conditions as they may think proper;
(2) The government may remit, in whole or in part, any forfeiture or disqualification imposed by a court exercising criminal jurisdiction and restore or revive, in whole or in part, the subject of the forfeiture;
(3) The government may delegate to the Minister for Justice any power conferred by this section and may revoke any such delegation;
(4) This section shall not affect any power conferred by law on other authorities.”
23. For a period of over 20 years, a practice has developed in the Central Criminal Court and the Circuit Court of including in a custodial sentence
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imposed by the court a provision for a review of the sentence at the expiration of a specified period. The normal practice has been for the trial judge, when the matter comes before him or her by way of review, to receive and consider reports from the prison service as to the behaviour of the convicted person. In cases where the person has been convicted of a sexual offence, reports will normally be forthcoming as to whether a place was available in a sex offenders programme and, if so, whether it was availed of by the convicted person. Similarly, where the convicted person is addicted to drugs or alcohol or both, reports would normally be available to the court indicating whether he has received appropriate forms of counselling or therapy and, if so, the degree to which he has benefited from them.
24. The Court of Criminal Appeal expressed its disapproval of sentences of this nature at an early stage in The People (DPP) .v. Fagan (unreported: judgment delivered 7th November 1977) and The People (DPP) .v. O’Toole (unreported: judgment delivered 26th May 1978). There was no written judgment in either of those cases, but in The People (DPP) .v. Cahill [1980] IR 8, the desirability of such sentences was considered at length by Henchy J. delivering the judgment of the court.
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25. In that case, the applicant was sentenced to seven years’ imprisonment by the Central Criminal Court, having been convicted of burglary. The trial judge, however, directed that the court would “consider suspending the then balance of the sentence” if the applicant were to be brought before the court after the expiration of 36 months and if he then showed that in the meantime that he had obeyed normal prison discipline and had shown a willingness to co-operate in preparing himself for integration into normal society.
26. In his judgment, Henchy J. having referred to the two earlier decisions, went on –
“Because the opinion of this Court (that a sentence in this form should not be imposed) has not been expressed in a written judgment and may, therefore, have escaped notice, the Court takes this opportunity of re-stating that opinion and giving reasons for it. There are a number of grounds on which this form of reviewable sentence could be said to be undesirable.”
27. The first of these grounds was that, in making such an order, a High Court judge sitting in the Central Criminal Court, would effectively be pre-empting the functions of the President of the High Court since s. 11 of the Courts (Supplemental Provisions) Act, 1961 stipulates that the jurisdiction
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exercisable by the Central Criminal Court shall be exercised by a judge nominated from time to time by the President of the High Court. Henchy J. pointed out that the projection by a trial judge of a sentencing jurisdiction into the distant future ignores the fact that, for a variety of reasons (including the statutory provisions therein referred to), he may not be available to exercise the purported jurisdiction on that date in the future. While that case was concerned only with the practice in the Central Criminal Court, the observations of Henchy J. would appear to apply mutatis mutandis to the position in the Circuit Court.
28. The second ground was that a sentence in this form did not seem compatible with the right of appeal against sentence given to a person convicted on indictment. Having regard to the time constraints applicable to the appeal procedure, a convicted person would be in difficulties in exercising his right of appeal on the ground of severity, since he would not know at that stage the length of the sentence which he would in fact be required to serve. If, however, the expression “the close of the trial” in the relevant rule of court, which was the time from which the appeal period ran, were to be the date when the sentence was being reviewed, the sentenced person’s right to seek to appeal would be postponed until then which would be “palpably unfair and unjust”. Henchy J. observed:
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“The inevitable conclusion seems to be that the appellate system postulates a trial that comes to a close with a final order which identifies once and for all the particular conviction and the particular sentence. From then on (save where it is specifically provided otherwise, by statute or under the rules) the trial judge is functus officio as far as the trial is concerned”
29. The third ground was that such a sentence gave the appearance of trenching on a function of the Executive. Henchy J. commented that
“It is part of the judicial function to determine the nature and extent of the sentence, whenever the general rule laid down by statute or common law gives a range of choice. Thereafter, it is with the power of the Government, or the Minister for Justice as its delegate, to commute or remit, in whole or in part, ‘any punishment imposed by a Court exercising criminal jurisdiction’ -see the provisions of s. 23 of the Criminal Justice Act, 1951. A direction that a prisoner is to be brought back to the court of trial for a review of his sentence after three years impliedly seeks to freeze the Executive discretion as to remission during that period, and then to vest in the court a power of review which is not readily
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compatible with the powers withheld from the Courts and vested in the Executive by s. 23 of the Act of 1951.”
30. Finally, it was said that such a sentence was not in accord with correct principles of penology, since it was desirable that both the prison authorities and the prisoner should be in a position to plan for the date of release and that the appropriate rehabilitative procedures should be in place leading up to the date of release.
31. The judgment concluded as follows:-
“For the foregoing reasons amongst others, the Court is of opinion that a sentence of a term of penal servitude or imprisonment which is coupled with the reservation to the court. or to the particular judge, of a power to review the sentence at a future date should not be imposed.”
“In this case the Court will quash the sentence imposed and, in lieu thereof will impose a sentence of four years imprisonment from the date of the imposition of the sentence hereby quashed.”
32. Despite this disapproval by the Court of Criminal Appeal of sentences of this nature, they have been imposed in many cases since then by judges sitting
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in the Central Criminal Court and the Circuit Court. They were also considered in a more recent decision of the Court of Criminal Appeal, The People at the suit of the Director of Public Prosecutions .v. Philip Sheedy (unreported: judgment delivered 15th October 1999). In that case, the applicant had pleaded guilty to counts of dangerous driving causing death and of driving a motorcar while above the alcohol limit. The trial judge imposed a sentence of four years to be reviewed in two years time. Delivering the judgment of the court, Denham J. said
“The issue of the review date formula of sentencing was not fully argued The review structure is a process by which a judge is able to individualise a sentence for the particular convicted sentence. It is a tool by which the judge may include in a sentence the appropriate element of punishment (retribution and deterrence) and yet also include an element of rehabilitation. For example, it may be relevant to a young person or a person who has an addiction or behavioural problem and at least some motivation to overcome that problem, it may well be appropriate as part of a rehabilitation aspect of the sentence to provide for a programme or treatment within the sentence as a whole and then to provide for a review of the process at a determinate time. However this was not such a case. There was no evidence of for example,
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addiction. There were no factors such as would render it appropriate to invoke a structure of treatment and then to review the sentence. This is not an appropriate case to sentence on the review date formula of sentencing. Thus, the trial judge erred in principle in this aspect of the sentence.”
33. From the summary of counsel’s arguments at an earlier part of the judgment it would appear that the court was referred to Cahill but it is not otherwise referred to in the judgment.
34. A sentence containing such a review provision was considered by this court in The People .v. Aylmer (decided in 1986 but not reported until [1995] 2 ILRM 624). A sentence providing for a review had been imposed in 1979 and the balance of the sentence was suspended in 1982 on condition that the applicant would remain of good behaviour. However, following a further separate conviction in 1984, the DPP applied to have the suspension of the balance of the 1979 sentence revoked and the Central Criminal Court duly ordered the applicant to serve the remaining balance of the sentence. The Supreme Court dismissed an appeal against the sentence, but the reasons given in the five judgments delivered are not the same.
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35. Walsh J. said that the sentence originally imposed by the Central Criminal Court was valid. He rejected a submission that it in some way trenched on the powers vested in the Executive by s. 3 of the Criminal Justice Act, 1951, pointing out that the Executive were not precluded from commuting the sentence in its entirety and that, if they had chosen so to do, the review provision in the sentence would simply have been inoperable. He also rejected the suggestion that the trial judge had in some way been usurping the functions of the President of the High Court, since the sentence simply envisaged that the order on the review procedure would be made by a judge of the Central Criminal Court, not necessarily himself. He declined to deal with the other grounds of appeal raised, on the ground that they raised questions as to whether the sentence imposed was in accordance with principles of good penology, which, he said, could only have been raised if an appeal had been taken against the sentence.
36. As to the decision in Cahill, Walsh J. commented that
“It should be pointed out that that in that case the court was dealing with a sentence of penal servitude and not one of imprisonment. When the question of whether any particular sentence is in an undesirable form or not falls to be considered by
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the appropriate appellate court it is one which must be determined by the circumstances of the case.”
37. It should be noted that Walsh J. accordingly, does not deal with two of the grounds mentioned by Henchy J. in Cahill i.e. whether a sentence containing a review procedure is incompatible with the right of appeal of a convicted person against sentence and whether it is in accordance with correct principles of penology. The reasons he declined to deal with the latter ground have already been mentioned and it may be that the first ground was not relied on in Aylmer.
38. Henchy J. said that the appeal should be dismissed because the applicant was estopped from claiming that the original sentence was invalid, since he had sought to take advantage of it by getting the balance of his sentence suspended. As to Cahill, he contented himself with saying that
“It is true that the Court of Criminal Appeal on 26th July 1979 in People (DPP) . v. Cahill held that an order of the kind made by Butler J in this case was undesirable. In my opinion, it is not necessary for the purpose of this appeal to make a ruling as to whether such an order is also invalid, as distinct from being undesirable.”
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39. Griffin J. also found it unnecessary to express any view on the validity of the original sentence: he held that, since it had not been appealed, its validity could not now be successfully challenged and that it followed that the order appealed from to the Supreme Court, deriving as it did its efficacy from its initial order, also could not be challenged.
40. Hederman J. also declined to express any view on the propriety or validity of sentences of this nature. He was satisfied that the appeal in the instant case failed because there had been no appeal within time from the original sentence and there were no grounds on which the court could grant any extension of time for such an appeal. McCarthy J., in common with Walsh J., was satisfied that the sentence containing the review provision was valid, but was not prepared to express any view as to its desirability, saying
“I think it would be invidious for me to express any view of intended general application in a sentencing matter. I would not wish to circumscribe the judicial power in its application to the circumstances of a particular case.”
41. Two members only of the court (Walsh and McCarthy JJ.), accordingly, upheld the validity of this form of sentence in that case. The majority
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(Henchy, Griffin and Hederman JJ.) were of the view that it was unnecessary to express any view on the validity or propriety of such a sentence and declined so to do.
42. The topic was considered more recently by the court in Michael O’Brien .v. Governor of Limerick Prison [1997] 2 ILRM 349. In that case, the applicant was sentenced to imprisonment for a term of 10 years, the final six years of which were to be suspended subject to certain conditions which were to take effect when the period of suspension began. However, the applicant claimed to be entitled to be released before the expiration of the four year period on the ground that he had at that stage served three-quarters of the custodial sentence and was entitled to be released pursuant to Rule 38(1) of the Rules of the Government of Prisons 1947. That rule provides that a prisoner sentenced to imprisonment for a period exceeding one calendar month is to be eligible, by “industry and good conduct”, to earn a remission of a portion of his imprisonment, not exceeding one-fourth of the whole sentence. The applicant in that case was entitled to the remission for industry and good conduct, provided – and this was the matter at issue – the provisions of Rule 3 8(1) applied to the term of four years and not to the term often years only.
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43. The court (Hamilton C.J., O’Flaherty, Denham, Barrington and Murphy JJ.) held that a sentence in that form could not be reconciled with the provisions of the Prisons (Ireland) Act 1907 and the Rules for the Government of Prisons 1947 which, in the view of the court, clearly contemplated that the period of imprisonment should be identical with the period of the sentence. It was also inconsistent with the provision in the Act that on the discharge of a prisoner “a sentence shall be deemed to have expired”: this, it was pointed out, seemed to be inconsistent with a period of imprisonment remaining suspended over a prisoner’s head after his release pursuant to the rules and the Act. Accordingly, the sentence of ten years, suspended as to the final period of six years, could not have been lawfully imposed, but a sentence of four years had been lawfully imposed and the applicant was entitled to a remission of one-quarter of that four years’ term. He was therefore entitled to be released after the expiration of three years.
44. O’Flaherty J. indicated in the course of his judgment that, had the trial judge made use of the review procedure instead of purporting to suspend the sentence as from a specified date, the sentence would have been valid. O’Flaherty J. commented:
“This form of order was held to be undesirable by the Court of Criminal Appeal in the case of People (DPP) .v. Cahill but when
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the question was revisited, this court in People (DPP) .v. Aylmer upheld the validity of this form of order. The desirability of such form of order was touched upon only to a degree in some of the judgments in the latter case.
As has already been pointed out, the majority of the court in Aylmer declined to express any view on the validity of the review procedure and, accordingly, the view of Walsh J. and McCarthy J. that such sentences were valid did not form part of the ratio decidendi of that case.
The validity of the review procedure was also referred to in The State (Woods) .v. Attorney General [1969] IR 385. The facts in that case were somewhat complex: it is sufficient to say that a sentence containing a review clause was found to be invalid by Henchy J. in the High Court, but solely on the ground that he construed the sentence as entrusting the decision as to whether the prosecutor was to be released to the prison authorities, which he considered to be an unlawful assignment of a purely judicial function to the Executive. On the hearing in this court, however, it emerged that the warrant in that case did not fully or accurately reflect what the High Court judge had said when imposing sentence. Ó Dálaigh C.J. in the course of his judgment said that it was clear that the High Court judge had in fact retained seisin of the case and
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that, accordingly, the sentence could not be regarded as invalid on the ground on which Henchy J. had based his decision in the High Court. The learned Chief Justice expressed no view on the wider issue which was subsequently debated in Cahill – as to whether such sentences were invalid in principle irrespective of how the review provision was worded – and, while in accordance with the then prevailing practice there is virtually no report of any of the arguments advanced to the court, it would seem reasonable to assume that the issues canvassed in Cahill were not the subject of any submissions to the court.
The issue as to whether sentences of this nature are valid and, if so, whether their imposition is desirable has, accordingly, never being authoritatively resolved. On three occasions, the Court of Criminal Appeal has held that they are undesirable. In Sheedy, however, it was accepted that their imposition in cases concerning young people and convicted persons with behavioural or addiction problems might be appropriate. In Woods, this court held that a sentence containing a review clause in particular terms was not invalid on a ground which had prevailed in the High Court. In Aylmer two members of the court were of the view that such sentences were valid, but expressed no opinion as to their desirability. The majority of the court expressly reserved the question as to whether they were either valid or desirable. In O’Brien, the determination of the issue was not necessary for the
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disposal of the appeal and, accordingly, the observations of O’Flaherty J., not dissented from by the other members of the court, that their validity had been established in Aylmer were obiter.
It remains to be noted that s. 5 of the Criminal Justice Act, 1999, which provides for the imposition of a mandatory minimum term of imprisonment of ten years for certain drugs offences, also provides that
“In imposing a sentence on a person convicted of an offence under s. 15A of [The Misuse of Drugs Act 1977], a court –
(a) may enquire whether at the time of the commission of the offence, the person was addicted to one or more controlled drugs, and
(b) If satisfied that the person was so addicted at the time and that the addiction was a substantial factor leading to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the period specified by the court under sub-s. 3(b) of the section.
3(h) On reviewing a sentence listed under sub-s. 3(g)(b) of this section, the court –
(a) may suspend the remainder of the sentence on any conditions it considers fit, and
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(b) in deciding whether to exercise its powers under this sub-section, may have regard to any matters it considers appropriate.
Conclusion
The central issue raised by this appeal is whether the expression “the sentence” in s. 2(2) of the 1993 Act refers to the sentence imposed by the learned trial judge on the 10th December 1996 or to the orders made by him on the 22nd October 1998 and the 14th April 1999 or to all three.
45. The arguments advanced on behalf of the prosecution necessarily involved the proposition that there were in this case at least two, if not three, sentences imposed by the Central Criminal Court. At the conclusion of a criminal trial, in the event of the jury having returned a verdict of guilty on one or more counts, the trial judge is required to impose sentence on the convicted person. When he has done so, he is, as a general rule, functus officio and he cannot thereafter impose a further sentence: the jurisdiction to substitute another sentence for the sentence actually imposed is exclusively a matter for the appellate court. If the review procedure availed of by the court in this case were to be regarded as the imposition by the trial judge of a different sentence
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at a later stage, its invalidity would be beyond argument: it is clear from the authorities already cited that, to the extent that such sentences are valid, it is because the trial judge is entitled to reserve to himself a power, when imposing sentence, to consider at a later date whether it should be suspended in whole or in part having regard to the behaviour of the applicant in the interim period. To that extent, and to that extent alone, the trial judge is not functus officio : the order made by him at the review procedure is no more than the carrying into effect of the sentence already imposed by him.
46. The court is, accordingly, satisfied that, to the extent that the legislature directed their minds to the possibility of a sentence containing a review clause when enacting s. 2(2) of the 1993 Act, they would have envisaged that any appeal taken by the DPP in the case of such a sentence on the ground of undue leniency was to be taken within 28 days from the imposition of the sentence and not of the order implementing the review procedure. It is important to note in this context that a number of the grounds advanced on behalf of the DPP at the appeal stage in this case, and which appear to have been the grounds which found favour with the Court of Criminal Appeal, related exclusively to the sentence as originally imposed, i.e. the gravity and severity of the assault and rape, the unprovoked nature of the assault and the grave impact of the assault and rape on the injured party. Clearly, given the express statement by the trial
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judge when imposing sentence that he would, at the review date, entertain evidence as to the conduct of the applicant in prison and the counselling he had undergone, it must have been anticipated on behalf of the DPP that, in the event of such reports being favourable, the balance of the sentence would be suspended. Arguments based on those grounds were, accordingly, appropriately directed to the sentence as originally imposed, containing as it did the review clause, and not to the order actually made at the review stage.
47. As to the definition of “sentence” in s. 1(1) of the 1993 Act, the legislature no doubt considered it desirable to make it clear that the expression “sentence imposed by the court” in s. 2(1) applied, not merely to custodial sentences, but also to the wide range of other sentences available to a court in dealing with a convicted person, e.g. fines, community service orders, orders forfeiting property or providing for the payment of compensation, etc. It also seems clear that, having regard to sub-paragraph (b), an order by the trial judge adjourning the imposition of sentence for a period of time, such as a year, in order to afford the convicted person an opportunity of demonstrating a bona fide intention of rehabilitating himself, is a “sentence” for the purposes of the section, as distinct from a an order adjourning sentence for the purpose of obtaining reports. That was so held by the English Court of Appeal in Attorney General’s Reference (No. 22 of 1992) [1994] 1 All ER 106, when it was
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considering a somewhat analogous provision in that jurisdiction. It can, accordingly, be said that, in such a case there are in effect two sentences, but that is because the legislature has elected to extend the definition of the word “sentence” to an order which in fact defers sentence. An appeal thus lies from either or both sentences and the time limit prescribed by s. 2(2) applies to both. An appeal would lie from the order deferring sentence on the ground that such a “sentence” was unduly lenient because the circumstances required the imposition of an immediate sentence, whether custodial or otherwise. Similarly, an appeal would clearly lie from the sentence ultimately imposed.
48. Similarly, an appeal undoubtedly lay from the sentence imposed in this case on the ground that the incorporation of a review procedure in the sentence was “unduly lenient” within the meaning of s. 2(1). No doubt, on a literal reading of the section each of the orders made in this case on the 22nd October 1998 and the 14th April 1999 was an “order made by a court in dealing with a convicted person” within the meaning of s. 1(2). That might suggest that, in an appropriate case, it would be open to the DPP, even where he had made no application to the Court of Criminal Appeal in relation to the original sentence, to apply to that court on the ground that an order made by the trial judge on the review date was “unduly lenient”, as where it was clear from the reports from the prison authority or from any other evidence before the trial judge that the
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conditions prescribed in the sentence for the reviewing of the sentence had not been complied with by the applicant.
However, s. 1(2) cannot be read in isolation: in accordance with normal principles of statutory interpretation, it must be read in the context of the statute as a whole, including the provisions of s. 2. Subsection (2) of that section refers to:
“a sentence imposed by a court on conviction of a person on indictment…” [Emphasis added].
49. While it can readily be accepted that, given the extended definition of “sentence” in s. 1(1), an order deferring sentence for a specified period for the purpose already mentioned is a sentence imposed by the court “on conviction”, the same cannot be said of the order made by a court giving effect to a review provision.
50. It must be remembered that the facility afforded by these provisions to the State, through its prosecuting authority, to challenge a sentence as being “unduly lenient” constitutes a significant encroachment upon the finality of a judicial decision in favour of a convicted person which, at least in the case of sentences imposed on persons convicted on indictment, is without precedent.
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51. Hence, the importance of the time limit of 28 days for making such an application prescribed by s. 2(2) and the absence of any power in the court to extend that time.
52. The court is satisfied that it would not be consistent with that approach to construe s. 2(2) as affording the Director two separate opportunities of applying to the Court of Criminal Appeal, the first arising on the imposition of the sentence containing the review provision and the second when the court actually reviews the sentence in accordance with the first decision. There is nothing in the statutory scheme to suggest that it was the intention of the Oireachtas to permit the DPP to intervene on two separate occasions to obtain a review from the court of what is effectively the same sentence.
53. The court is, accordingly, satisfied that, not having applied to the Court of Criminal Appeal within the 28 days prescribed by s. 2(2) on the ground that the incorporation of the review procedure was “unduly lenient” within the meaning of s. 2(1), the prosecutor was precluded from making an application to the court in respect of the two orders subsequently made by the trial judge and that the Court of Criminal Appeal was wrong in law in substituting sentences of six years imprisonment and three years imprisonment with no suspension of either sentence for the sentence originally imposed by the trial judge.
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54. That is sufficient to dispose of the appeal in the present case. However, it will be apparent from the earlier part of this judgment that there is considerable uncertainty as to the legal validity of the practice of providing in custodial sentences for the review of the sentence at a later date by the court imposing the sentence. Members of this court who have sat regularly on the Court of Criminal Appeal and have also experience of the practice in the Central Criminal Court or in the Circuit Court are aware that, while some judges consider the practice not only valid, but desirable, others take the view that they should not impose such sentences. In a matter of such importance it is to be expected that this court will afford clear guidance to trial judges and, accordingly, while mindful of the fact that in legal terms everything it says on this topic must be regarded as obiter, it is satisfied that it is desirable in the public interest that such guidance should be available to trial judges.
55. There can be no doubt that, in the opinion of some judges, the review procedure is an important mechanism which helps to ensure the rehabilitation of convicted persons. There are, however, two important aspects of such sentences which must be borne in mind in considering their legal validity.
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56. First, there is the factor identified by Henchy J. in The People (DPP) .v. Cahill i.e. that a sentence in this form is, in effect, an invasion by the judicial arm of government of the executive domain which is not authorised by law. The court recognises the force of the view expressed by Walsh J. in Aylmer that a trial judge, in imposing a sentence in this form, does not in any way interfere with the statutory power of the Minister for Justice to commute or remit the sentence pursuant to s. 23 of the Criminal Justice Act 1951. It is undoubtedly the case that, where such a sentence is imposed, there is in law nothing to prevent the Minister for Justice from exercising his power of commutation or remission during the period between the imposition of the sentence and the review date.
57. However, the essential legal frailty of the review procedure is not that it deprives the executive of its statutory power to commute or remit the sentence during that period. It is that, when the review date arrives and the Central Criminal Court or the Circuit Court, on being satisfied that the relevant conditions have been met, suspends the balance of the sentence and orders the release of the convicted person, it is in substance exercising the power of commutation or remission which the Oireachtas has entrusted exclusively to the government or the Minister for Justice to whom the power may be delegated. The Minister cannot, of course, in exercising that power do what the court
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purports to do at the review stage, i.e. impose a suspended sentence which would normally involve the convicted person being returned to prison on foot of the order of a court in the event of his being convicted of further offences or breaking other conditions attached to the sentence. But if one looks to the substance of the order made by the court at the review date it is clearly an order which releases the convicted person before the completion of the sentence which the judicial arm of government considered appropriate at the sentencing stage and must, accordingly, be regarded as, in all but name, the exercise by the court of the power of commutation or remission which, during the currency of the sentence imposed by the court, is vested exclusively in the Executive.
58. The making of such orders is not merely inconsistent with the provisions of s. 23 of the 1951 Act: it offends the separation of powers in this area mandated by Article 13.6 of the Constitution. That provision expressly vests the power of commutation or remission in the President but provides that the power may also be conferred by law on other authorities. Since under Article 15.2.10 of the Constitution the sole and exclusive power of making laws for the State is vested in the Oireachtas, it was for the legislative arm alone to determine which authorities other than the President should exercise that power. In enacting s. 23 of the Criminal Justice Act 1951, the Oireachtas conferred the power of commutation or remission on the government or, where
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it delegated its power, the Minister. In The State (O) .v. O’Brien [1973] IR 50, Walsh J. with whom Budd J. agreed, categorised the power in question as being essentially judicial, but pointed out that it had been
“nonetheless expressly conferred by provisions of the Constitution upon the President and, in certain instances, upon the Executive or members thereof.”
59. It would seem to follow that the remission power, despite its essentially judicial character, once vested under the Constitution in an executive organ, cannot, without further legislative intervention, be exercised by the courts. That, as has been noted, has been done in the case of certain drugs offences by the Criminal Justice Act, 1999.
60. It is also, of course, open to the Oireachtas to provide by legislation, as has been done in other countries, for the regular review of sentences by a parole board and such an approach might well be consistent with modern penological principles. These again, however, are entirely matters for the legislature and not within the competence of the courts, having regard to Article 13.6, to determine.
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61. It must also be said that, altogether apart from those considerations, the reservation by trial judges to themselves of a power to review the sentence being imposed by them at some later date appears to be fundamentally at variance with the appeal structure prescribed by Order 86, Rule 3 of the Rules of the Superior Courts. That provides that
“Every application for a certificate of the judge of the court of trial that the case is a fit case for appeal shall be made at the close of the trial or within three days thereafter…”
62. The “close of the trial” would normally be taken as referring to the stage at which the trial judge imposes sentence. If, however, the sentencing process is not completed until the review date, that would appear to be “the close of the trial” for the purposes of the rule and a convicted person would effectively be deprived of his right of appeal against the sentence until such time as he had served at least part – and it may be in some cases a significant part – of the sentence imposed by the trial judge.
63. The form of sentence imposed in this case came into use for a variety of reasons. First, there was a very striking increase in crime committed by persons who were drug addicts or were otherwise in need of treatment which gave rise to a need to give positive encouragement to avail of it. Secondly, and
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at about the same time, the “revolving door syndrome” created a need to ensure, as far as possible, that certain prisoners would actually serve some minimum sentence. Thirdly, the absence of any significant legislative initiative on these topics encouraged and virtually constrained trial judges dealing with such cases on a day to day basis to attempt to supply the deficiency in the course of dealing with individual cases. In this context, it may be noted that even the suspended sentence, though apparently in use for upwards of a century, has no statutory basis in Irish law. And fourthly, while the executive power of remission of sentences (apart from the usual remission obtainable under the prison rules) always existed, it was exercised in a manner which a leading academic authority has moderately described as “rather haphazard”. Certainly, it was neither sufficiently clear in its principles nor transparent in its operation to meet the penological requirement of reasonable certainty.
64. In those circumstances, it appears to us that Professor Thomas O’Malley, the author quoted above, is correct when he says in his book Sentencing Law and Practice (Dublin 2000 ) that:-
“In developing the part suspended and reviewable sentences, judges had very honourable motives. They were endeavouring, in many cases, to counteract the ‘revolving door syndrome’ by ordering that certain offenders should remain in prison for a
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minimum period of time. The public would thus have a greater measure of protection and the offender might hopefully be able to get some treatment for drug addiction, aggressive tendencies or some similar problem.”
65. It now appears extremely desirable, to say the least, that the question of remission of sentence, and any review which is to precede it, should be placed on a clear and transparent basis. The Law Reform Commission in their Report on Sentencing [LCR 53-96] reviewed a number of options in this regard. This is not a matter within the competence of this court. It is clearly for the Oireachtas to decide whether to retain the present system unaltered, to retain it on a clearer and more transparent basis, to devolve the function wholly or partly to a parole board or some other entity, or indeed to confer it on the courts. But as the law presently stands the courts cannot exercise this function in individual cases by reason of the separation of powers mandated in this regard by Article 13 of the Constitution. Nor can they prescribe or advocate an alternative system because that is in the remit of the legislature.
66. The court has already pointed out that its observations in this area are necessarily obiter. They are not to be taken as impugning the validity of such sentences imposed by trial judges in cases which have already come before the
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courts, either because of the incorporation of review provisions or the manner in which such review provisions have been implemented or not implemented or the manner in which they may be implemented or not implemented in the future. That also applies to the sentence imposed by the trial judge in the present case and the manner in which he operated the review procedure on two subsequent occasions.
67. It must also be borne in mind that, given the clear disapproval of sentences in this form voiced by the Court of Criminal Appeal in 1979, it would have been open to a convicted person to challenge the validity of such sentences either by way of appeal to the Court of Criminal Appeal, or, in the case of the Circuit Court, in judicial review proceedings. That of itself might render challenges now brought to the validity of such sentences, or the manner in which the review clauses were implemented or not, unsustainable. For the purposes of this judgment, however, it is sufficient to say that the court is satisfied that sentences in this form are undesirable, having regard to the serious legal questions which arise as to their validity, and that the practice of imposing them should be discontinued.
68. In the present case, the court will allow the appeal and will substitute for the sentence imposed by the Court of Criminal Appeal the sentence originally
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imposed in the Central Criminal Court and will also affirm the orders made by the Central Criminal Court on October 26th, 1998 and April 14th, 1998.
People (DPP) v O’Brien
[2018] IECA 2.
Judgment of the Court delivered on 16th January 2018 by Mr. Justice Edwards.
Introduction
1. In this case the applicant seeks a review of a sentence of three years’ imprisonment, with the final two years thereof suspended upon conditions, imposed upon the respondent on the 20th of February 2017 by the Dublin Circuit Criminal Court in respect of a single count of burglary contrary to s.12 (1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001, on the grounds that the said sentence was unduly lenient.
The evidence at the sentencing hearing
2. The Circuit Court heard from Garda William Brosnan that the burglary occurred on the 31st of August 2016 and was in respect of a private dwelling house on Marlborough Road in Glenageary, South County Dublin owned and occupied by a lady called Marian Shanley, who had lived there for the past 36 years.
3. Mrs Shanley had left her home at 10.15 that morning, setting the burglar alarm as she left. At about 2.30pm she received an alert by telephone from her alarm monitoring company notifying her that her alarm had been triggered by a sensor in her house. She decided not to return immediately and to monitor the situation, but at 7.15pm she was contacted again by the monitoring company who informed her that there had been a lot of activity detected by sensors in the house and that they were calling the Gardai. Mrs Shanley decided to return home at that point, and telephoned her sister Bernice on her way there asking her to meet her there.
4. Mrs Shanley’s sister in fact reached the house first, who observed evidence of an apparent break-in. Suspecting that the intruder might still be in the house, she opened a door and shouted that she was there and that the Gardaí were on their way. Mrs Marian Shanley then arrived and she observed that there was broken glass, and there were doors open that should be shut. At this point the intruder appeared and ran through the kitchen door. He was not recognised at that point but both ladies were subsequently able to describe him as having red shaggy hair and as wearing predominantly blue checked shorts, which were falling down and which the intruder was holding up as he ran.
5. The intruder was observed running through the kitchen into the conservatory and then exiting the house and running across the garden. He was pursued by Mrs Shanley and her sister. When it seemed to the intruder that he had no apparent means of escaping from what was an enclosed garden other than by route through which he had entered it, he ran back past the two ladies, re-entered the conservatory and locked the door behind him leaving the two ladies in the garden and locked out of the house. At this point Mrs Shanley’s sister recognised the intruder. She had lived in Dún Laoghaire for a long time and realised that the intruder was a man that she knew to have been living at Crosthwaite Park in Dún Laoghaire.
6. There was in fact a side entrance to the garden which the intruder had failed to notice in his haste and Mrs Shanley went out through this side entrance and observed the intruder exiting the front door of the house and running down the road away from the house.
7. The intruder was observed to be carrying a pink shopping bag containing certain goods when he first exited the house and ran in to the garden, but he dropped this bag and left it behind him in the garden. The bag was subsequently examined and all of the goods within it were found to be the property of Mrs Shanley. A later check of the house revealed that a sum of US$500 had been also been taken, as well as a gold coin of sentimental value. Neither the cash nor the gold coin were in the bag that was dropped in the garden, and they were never recovered.
8. The Gardaí arrived shortly after the intruder had run away, and commenced an investigation. The received, inter alia, a description of the intruder from Mrs Shanley and her sister, and Mrs Shanley’s sister also informed them of her belief that the intruder was known to her, although not by name, and that he lived at Crosthwaite Park in Dún Laoghaire. In the course of the Garda investigation CCTV footage recorded on the 31st of August 2016 was recovered from Glenageary Dart station and was viewed by Garda Brosnan. This CCTV footage had captured the arrival there of an individual with red hair and distinctive shorts matching the description furnished by the two ladies. This individual was personally known to Garda Brosnan, and was identified by him as the respondent.
9. Further CCTV footage recorded on the day following the burglary was recovered from the Bank of Ireland in Dún Laoghaire. This captured the respondent exchanging a quantity of US dollars for Euro.
10. The respondent was arrested on the 21st of September 2016, and was detained at Dún Laoghaire Garda Station where he was interviewed. Nothing of evidential value emerged from the interview, other than an admission that he lived at Crosthwaite Park in Dún Laoghaire.
The impact on the victim
11. The transcript reveals that the court below received a victim impact statement on behalf of Mrs Shanley, and it was considered by the sentencing judge. Although this was not read into the record, and we have not been provided with a copy of what was handed in, the sentencing judge summarised the contents of the victim impact statement in her sentencing remarks, stating that:
“The Court has heard evidence of the impact on the victim, and Mrs Shanley found the events extremely distressing, and she did not want her family to have a particular view of her as a vulnerable person, and that impacted on her that she may be — they may consider her vulnerable and it’s not an appellation that she wanted to have, or for her family to view her in that way, and they are of course of significance. Mrs Shanley lives in the house on her own.
The respondent’s personal circumstances.
12. The court below heard that the respondent was born on the 11th of May 1986, making him 30 years of age at the time of the burglary.
13. The respondent had 103 previous convictions, including the following:
• Three convictions for possession of drugs with intent to supply contrary to s.15 of the Misuse of Drugs Act 1977;
• Four convictions for possession of drugs contrary to s.3 of the Misuse of Drugs Act 1977;
• Two convictions for causing criminal damage;
• Three convictions for the unlawful taking of a motor vehicle;
• One conviction for driving under the influence of an intoxicant;
• Six convictions for burglary, the most recent of which was dated the 23rd of January 2015, and in respect of which the respondent had received a four-year suspended sentence that was imposed by Dublin Circuit Court. The offence giving rise to the sentence the subject matter of this review was committed during the currency of that suspended sentence;
• Eleven convictions for theft;
• One conviction for being in possession of an article with the intention that it be used in the course of, or in connection with, a theft or burglary, contrary to section 11 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.
• Four convictions for assault contrary to s.2 of the Non Fatal Offences Against the Person Act 1997;
• Two convictions for assault causing harm, contrary to s.3 of the Non Fatal Offences Against the Person Act 1997;
• Numerous road traffic offences and public order type offences; and
• Six convictions for failing to appear in court, contrary to s.13 of the Criminal Justice Act 1984.
14. Following his arrest the respondent did not succeed in securing station bail, and was brought before the District Court on the following day (22nd September 2016) where he was refused bail by the presiding judge and was remanded in custody. He was sent forward for trial on indictment to the Dublin Circuit Criminal Court in November 2016. The matter was then first listed before the Dublin Circuit Criminal Court on the 2nd of December 2016, on which occasion he was arraigned and pleaded guilty. Counsel for the applicant accepts that, for the purposes of s. 29(1)(a) of the Criminal Justice Act 1999 this was to be regarded as being a plea at the earliest opportunity. However, with regard to s.29(1)(b) the plea was offered in circumstances where he had in effect been caught red-handed and there was a strong case against him.
15. The respondent had not served a custodial sentence in five years. He ordinarily lived with his parents. He has a child with his estranged partner. He was employed in the past as a groundsperson at Leopardstown Racecourse but was let go six or seven years ago, although not for any reason that would reflect adversely on him. After he was let go he developed a drug addiction and ultimately he became a heroin addict. He also developed mental health problems in this period, and has been diagnosed as being depressed and was prescribed Desipramine (an anti-depressant). He developed suicidal ideation and on a date in May 2016, and again on the 27th of July 2016, just weeks before his commission of the offence with which we are presently concerned he made two serious attempts at self harm by overdosing on heroin, which resulted in his hospitalisation and urgent referral to psychiatric services. He briefly attended the Centre for Living in Cuain Mhuire, in the aftermath of his release from hospital following the May 2016 incident but did not keep appointments and was discharged from their services in August 2016. In regard to the respondent’s mental health problems and co-morbid addiction problems, the court below, and also this court, was furnished with relevant medical records confirming the history provided.
16. The evidence was that following his remand in respect of the present offence, he formed a determination to address his addiction and mental health issues. He successfully detoxified from drugs while in prison and at the first sentencing hearing on the 11th of January 2017 evidence was adduced on his behalf of a variety of steps taken by him towards addressing his addiction and mental health problems. These included confirmation of a clear urine analysis which had screened for drugs, a positive testimonial from the prison chaplain and a letter from Fr Peter McVerry offering to link the respondent again with Cuain Mhuire on the basis that he would undergo a 20 week residential drug treatment course, if and when he was in a position to do so. The Circuit Court judge was sufficiently impressed with the evidence presented to her that she decided to adjourn the matter for four weeks and to direct a probation report and continuing urine analysis.
The Probation Report
17. It is fair to say that overall the Probation Report, which was dated the 20th of February, 2017, was favourable to the respondent. Although it assessed him as being of high risk of re-offending in the next twelve months, the probation officer qualified his assessment by saying that that would be the case “unless he addresses the identified risk factors”. These were substance misuse, his extensive criminal history, lack of training and employment, and a breakdown in social supports following his split up with his, now, ex-partner and lack of access to his child. On the positive side it was noted that he had detoxified and was clean at the time of assessment, he appeared to have some insight into the harm he may have caused to his victim and was remorseful, he had previously begun a Probation Service Choice and Challenge Program that sought to address his attitude to crime and promote positive change in his behaviour, but his participation had been interrupted by his being placed in custody. In addition he had attended Dún Laoghaire Rathdown Outreach Project (DROP) and had completed the Morning Programme in their Rehabilitation Day Service for which he has received a certificate of achievement. This rehabilitation programme aimed to assist recovering drug users and to prepare them for moving into further training, education or employment. The report further noted his engagement with Fr Peter McVerry, and his willingness to avail of a residential substance abuse treatment at Cuain Mhuire if and when permitted to do so.
18. The probation officer stated by way of conclusion:
“At interview I discussed the possible outcomes in today’s matter before the Court, and Mr O’Brien is favourable to being placed on supervision should the Court be considering a community sanction. Mr O’Brien has advised that he is no longer taking any drugs and that he has been offered a residential placement commencing from today in Athy. I would contend that this would be the more favourable option and to release him under the condition that he go to this placement and complete the programme fully. The Probation Service is available to supervise Mr O’Brien in addition to this recommendation.”
19. When the sentencing hearing resumed before the Circuit Court on the 20th of February 2017, the court was informed that the respondent’s urine analysis remained clear. A letter was handed in from the respondent himself expressing his remorse and shame and his determination to turn his life around. The Court was also told that in addition to the steps towards rehabilitation referred to in the Probation Report, the respondent had also participated in a program run by Southside Travellers Action Group that targeted specific interventions to support him in areas of his drug and alcohol misuse, and a letter confirming his said participation and positive person progress was handed in.
20. In addition the Circuit Court Judge was furnished with a letter from Dún Laoghaire Rathdown Outreach Project (DROP) confirming his achievements there; as well as Certificate of Accomplishment from the Cloverhill Computer Workshop showing that the respondent had successfully completed a Mavis Beacon Typing course.
The Section 99 issue
21. It emerged in the course of the evidence on the first day that this matter was before the sentencing judge (11th January 2017) that on 15th of August, 2013, over three years prior to the incident the subject matter of this application, the respondent committed a separate burglary in the Glenageary area when an 80 year old man was disturbed whilst asleep when his house was broken into by the respondent.
22. With regard to that prior offence on the 23rd of January, 2015 a four year sentence was imposed by Dublin Circuit Criminal Court which was the subject of bill no. DUDP 073/2014. The sentence was suspended for three years.
23. Between the 11th of January 2017 and the 20th of February 2017 (the second date on which the matter was before the sentencing judge) an application was brought pursuant to s. 99 of the Criminal Justice Act 2006, returnable for the 20th of February 2017, seeking revocation by the sentencing judge of the suspended portion of the sentence that had been breached.
24. The sentencing judge declined to revoke the suspended sentence upon being advised that it was not possible to part-revoke and re-suspend the balance of the sentence arising from the decision of Peart J. in DPP v. Vajeuskis [2014] IEHC 265.
25. There is no appeal against the refusal to revoke the suspended sentence.
The Sentencing Judge’s Remarks
26. In sentencing the respondent the sentencing judge referred to the circumstances of the crime and stated that it was aggravated by the respondent’s actions in locking the ladies out of the conservatory, and entering the house (a dwelling) when there were people there. It was further aggravated by his previous convictions, 103 in total, six of which were for burglary, and the fact that the offence was committed during the currency of the suspension of an earlier sentence. As already mentioned, the sentencing judge also referenced the impact on Mrs Shanley.
27. The sentencing judge then continued:
“By way of mitigation, I take into account the guilty plea of the accused, which significantly mitigates the offence. Garda Brosnan fairly accepted that the accused did not believe that there was another person in the house at the time, and I accept that. It seems to have an opportunistic offence. The offending, while it is does not mitigate as such, but it does come within the context of a significant heroin addiction, and that has been documented as well in the probation reports. I take into account the personal circumstances and mental health of the accused. He had within the month previously, previous to this offence attempted suicide, so that was shortly before this offence, and he seemed to be involved in a mental health deterioration at that time. I take into account the various testimonials and in particular the accused’s letter of apology where he does express for his offending, and he does appear to be able to have some insight and to put some context on that vis-à-vis his personal circumstances at the time. I note that he was attending Outreach and receiving rehabilitation and treatment in respect of his addiction.
There are also a number of other testimonials that have been furnished to the Court. Mr Gillen, from the Southside Travellers Action Group, has confirmed that Mr O’Brien’s participation in targeted programs, and has indicated that Mr O’Brien has made positive progress with the group and is continuing to do so through engagement with those services. I also have a letter from a Father O’Sullivan, who is the chaplain to Cloverhill Prison. He’s indicated that Mr O’Brien’s behaviour and demeanour while in custody has been exemplary and he has been respectful towards everybody, and Father O’Sullivan indicates as well that his previous offences stem from his drug addiction. So, the Court has to consider whether Mr O’Brien is amenable to rehabilitation, and must took to rehabilitation in terms of addressing the accused’s future, and in terms of deciding on the appropriate sentence in this case. There’s also a letter from Father Peter McVerry and he has indicated that there’s residential treatment available for him with the trust. I also have had regard to the probation report in the case, from the probation officer, Anthony Kelly, and Mr Kelly, again, has set out the accused’s background, and Mr O’Brien indicates that, regarding victim consideration, Mr O’Brien has been able to identify the potential fear that the house owner may have had, knowing that someone had broken into the property, and he has shown some insight into that. The probation officer also sets out again the family circumstances of Mr O’Brien, and Mr O’Brien is lucky to come from a supportive family, and who do not condone criminal behaviour, and his father is present here today in court, and the Court notes that, that his family are supportive of him in terms of motivating him to address his substance misuse. He’s the father of a young child and that seems to be, as well, providing some motivation for him in that regard.
One of the difficulties in terms of assessing Mr O’Brien’s capacity, or tendency to reoffend, has been his lack of education and poor employment record. And I note that he left school at a young age, a very young age, at the age of 12, with poor literacy skills. Nonetheless, he has worked at various times and indeed worked as a maintenance person for a period of time and enjoyed that work, but the lack of employment has negatively affected him. I note that he has attended Dún Laoghaire/Rathdown Outreach programme, and that rehabilitation aims to assist recovering drug users to prepare them for moving into further training. I note as well that the probation officer has discussed the various outcomes with Mr O’Brien and favourable recommends him to be placed on probation supervision on very strict terms regarding taking up a residential placement in respect of his drug addiction. Had the case gone to full trial, I would have considered a three-year custodial sentence to have been the appropriate sentence in the circumstances. What I intend to do is to give Mr O’Brien an opportunity to address his addiction and I will suspend backdate that sentence to the date he went into custody in September —
COUNSEL: The 21st of September.
JUDGE: The 21st of September 2016. And I’ll suspend the final two years, taking into account all of the mitigation, but I do believe that a deterrent has to be kept over his head, on condition that he undergo that he remain under the supervision of the probation services. I’m going to suspend that two-year period for a period of three years, on condition that he remain under the supervision of the probation services, that he remain drug free, that he take up a residential drug treatment programme as directed by the probation services, that he undergo urinalysis as directed by the probation services and follow all other directions of probation services.”
Submissions and Discussion
28. The grounds of application filed on behalf of the application list five complaints, the first four of which relate to the sentencing judge’s assessment of the gravity of the offence, and the last of which relates to the extent of her discounting to reflect the mitigating circumstances in the case. The grounds as filed were:
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 offence committed by the respondent was committed during the currency of a suspended sentence imposed by Dublin Circuit Criminal Court on bill DUDP073/2014 in relation to a similar offence;
iii. The sentencing court had inadequate regard to the previous convictions of the respondent for similar offences;
iv. The sentencing court had inadequate regard to the impact of the offence on the victim;
v. The sentencing court gave excessive weight to the mitigating factors in the case;
29. At the commencement of the oral hearing before this Court, enquiry was made of counsel for the applicant as whether his client was truly concerned both about how the sentencing judge had assessed the gravity of case, as well as the quantum of discount afforded for mitigation, and counsel conceded that the concern was really with the latter. He stated that the applicant was not now contesting the appropriateness of the three year headline sentence identified by the sentencing judge as being appropriate to the gravity of the case. The focus of the application for a review would therefore be on the appropriateness of the suspension of the final two years of the sentence. It was the applicant’s case that the two year suspension meant that the ultimate sentence represented a substantial departure from the norm and was unduly lenient.
30. The law in relation to undue leniency reviews pursuant to s. 2 of the Criminal Justice Act 1993 is well settled at this stage. The relevant jurisprudence (in particular The People (Director of Public Prosecutions) v. McCormack [2000] 4 I.R.356; The People (Director of Public Prosecutions) v. Redmond [2001] 3 I.R. 390 and The People (Director of Public Prosecutions) v. Byrne [1995] 1 I.L.R.M. 279), indicates that before a reviewing court can find the sentence to have been unduly lenient, it must be satisfied that the sentence imposed involved “a clear divergence by the court at trial from the norm” that will have been caused by “an obvious error of principle”.
31. Moreover, the following particular points were emphasised by O’Flaherty J giving judgment for the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Byrne:
“In the first place, since the Director of Public Prosecutions brings the appeal the onus of proof clearly rests on him to show that the sentence called in question was ‘unduly lenient’.
Secondly, the court should always afford great weight to the trial judge’s reasons for imposing the sentence that is called in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to court as in this case — both women were very adamant that they did not want to come to court — he may detect nuances in the evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced: what Flood J has termed the ‘constitutional principle of proportionality’ (see People (DPP) v. W.C. [1994] 1 ILRM 321), his decision should not be disturbed.
Thirdly, it is in the view of the court unlikely to be of help to ask if there had been imposed a more severe sentence, would it be upheld on appeal by an appellant as being right in principle? And that is because, as submitted by Mr Grogan SC, the test to be applied under the section is not the converse of the enquiry the court makes where there is an appeal by an appellant. The inquiry the court makes in this form of appeal is to determine whether the sentence was ‘unduly lenient’.
Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.”
32. In The People (Director of Public Prosecutions) v. McCormack [2000] 4 I.R. 36 Barron J. said (at page 359):-
“In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save perhaps in exceptional circumstances, have been caused by an obvious error in principle.
Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of possible penalties is dependent upon those two factors. It is only when the penalty is below the range as determined on this basis that the question of undue leniency may be considered.”
33. More recently in The People (Director of Public Prosecutions) v Stronge, [2011] IECCA 79, McKechnie J. distilled the case law on s. 2 applications into the following propositions:
“(i) the onus of proving undue leniency is on the D.P.P.;
(ii) to establish undue leniency it must be proved that the sentence imposed constituted a substantial or gross departure from what would be the appropriate sentence in the circumstances. There must be a clear divergence and discernible difference between the latter and the former;
(iii) in the absence of guidelines or specified tariffs for individual offences, such departure will not be established unless the sentence imposed falls outside the ambit or scope of sentence which is within the judge’s discretion to impose: sentencing is not capable of mathematical structuring and the trial judge must have a margin within which to operate;
(iv) this task is not enhanced by the application of principles appropriate to an appeal against severity of sentence. The test under s. 2 is not the converse to the test on such appeal;
(v) the fact that the appellate court disagrees with the sentence imposed is not sufficient to justify intervention. Nor is the fact that if such court was the trial court a more severe sentence would have been imposed. The function of each court is quite different: on a s. 2 application it is truly one of review and not otherwise;
(vi) it is necessary for the divergence between that imposed and that which ought to have been imposed to amount to an error of principle, before intervention is justified; and finally
(vii) due and proper regard must be accorded to the trial judge’s reasons for the imposition of sentence, as it is that judge who receives, evaluates and considers at first hand the evidence and submissions so made.”
34. The sentencing judge in this case identified a large number of mitigating factors to which she had regard. These included:
a. The respondent’s guilty plea which was of assistance to the injured party and meant that she did not have to come to court and give evidence;
b. That Garda Brosnan accepted that the respondent did not believe that there was a person in the house at the time;
c. That the offence seemed to be opportunistic;
d. That, while not a mitigating factor as such, the respondent was a person with longstanding heroin addiction;
e. That the respondent had attempted suicide within the month prior to the offence and his mental health seemed to have deteriorated at that time;
f. That the respondent appeared to have insight into his offending which was borne out in his letter of apology;
g. That the respondent was attending Outreach and receiving rehabilitation and treatment in respect of his addiction;
h. That the respondent was participating in targeted programmes with Southside Travellers Action Group and had made positive progress with the group and was continuing to do so through engagement with those services;
i. That a letter was provided from a Father O’Sullivan, who is the chaplain to Cloverhill Prison who indicated that the respondent’s behaviour and demeanour while in custody had been exemplary and he had been respectful towards everybody, and that his previous offences stem from his drug addiction;
j. That the respondent had engaged with Father Peter McVerry and he had indicated that there was a residential treatment available for the respondent with Cuain Mhuire;
k. That the respondent was a father of a young child; and
l. That the respondent took full responsibility for the offence and the effects on the injured party in his letter to the Court.
35. As the sentencing judge did not indicate the weighting she had afforded to individual factors in deciding to reflect the cumulative available mitigation by suspending the final two years of the sentence, counsel for the applicant was unable to say with specificity that undue weight was afforded to any particular factor. The sentencing judge is not to be criticised for not indicating the weighting afforded to individual mitigating circumstances, as to date it has never been the practice in this jurisdiction to do so. This is because the Irish courts have never regarded the process of sentencing as amenable to a rigid algorithmic or mathematical approach, but rather have always recognised that each sentence must be individual, and that in determining the overall weight to be afforded to factors weighing in the balance at either stage of the sentencing process, i.e the assessment of gravity or the affording of discount for mitigation (in this instance we are concerned with the latter), the sentencing judge will bring to bear his or her professional experience, intuition and subjective judgment and arrive at a figure on the basis of, what is sometimes called in the academic literature on sentencing, “instinctive synthesis”. The sentencing judge must be afforded a significant margin of discretion in doing so.
36. We acknowledge that notwithstanding what we have said concerning the inappropriateness of a rigid algorithmic or mathematical approach, this Court has, on occasion, such as in The People (Director of Public Prosecutions v Molloy [2016] IECA 239, found it helpful in reverse engineering an inadequately reasoned sentence to indicate typical ranges of discounts for matters such as a plea, previous good character etc, and to apply a crude arithmetic solely for the narrow purpose of forming an overall impression, in the absence of any information concerning the actual extent of discount afforded, as to whether or not the impugned sentence “looks correct”. However, in having occasionally done so, we are not to be taken as in any way commending the adoption of an algorithmic or mathematical approach in sentencing practice at first instance.
37. Having acknowledged that judges enjoy a significant margin of discretion in sentencing, it requires to be stated that no sentencing judge operates completely in a vacuum, and so he or she must, in exercising their discretion, also have regard to statutory sentencing guidelines where they exist, e.g. s.29 of the Criminal Justice Act 1999; must adhere to principles of sentencing law expounded in binding precedent e.g., that a sentence must be proportionate both to the gravity of the offence and the circumstances of the offender; must adhere to guideline judgments where they exist (or justify departure from them); and finally should have regard to appropriate comparators opened to the court (although it is acknowledged that comparators may be of very limited value in determining appropriate discount for mitigation).
38. The high water mark of the applicant’s case is than an effective 66% discount on the headline sentence was excessive in the circumstances of this case. Counsel for the applicant has speculated that perhaps too much importance was attached to the plea of guilty in circumstances where the respondent was caught red handed, and too much weight attached to his mental health and addiction issues. In addition, counsel questions whether it was appropriate to incentivise rehabilitation to the very great extent that the sentencing judge did in this case, against the background that the respondent had previously been given a chance but had spurned it by committing the present offence during the currency of his previously suspended sentence.
39. Predictably counsel for the respondent contends that the sentencing judge acted within the range of her legitimate discretion and that even if the sentence was a lenient one it was not unduly lenient.
Decision
40. Having carefully considered all of the circumstances of this case we are not satisfied that the applicant has discharged the required burden of proof.
41. No issue is now taken with the headline sentence of three years, and we consider the applicant’s approach in that regard to be sensible and supported by comparators – see for example the ex tempore judgment of Sheehan J on behalf of this Court in The People (Director of Public Prosecutions) v Christopher McCarthy [2016] IECA 254.
42. It is clear from the transcript that the sentencing judge approached this case with great care and conscientiousness. She heard the evidence first hand and was particularly impressed with the respondent’s expression of a purpose of amendment and concerning the steps that he had taken along that road. Given that the respondent had 103 previous convictions, 6 of which were for burglary, and the fact that this offence had been committed while the respondent was already subject to a suspended sentence, the sentencing judge would not have faced ready criticism if she had approached the respondent’s expressed resolve, and plea to be allowed to continue along the path he had lately taken, with considerable scepticism. However, having heard the evidence, having observed the respondent first hand, having considered the medical records, the Probation Report, the testimonials and the other supporting documents, the sentencing judge, although of the view that there would have to be some actual custodial element to the sentence, took the view, notwithstanding the respondent’s bad record, and the fact that a previous chance had not been grasped, that the respondent appeared to be genuine in his resolve and that it was in the long term interests both of himself, and of society, that his sentence should be structured in the way that it was, both to reflect the substantial mitigating circumstances in the case but also, and perhaps more importantly, to ensure that his continued progress towards rehabilitation would be incentivised.
43. The sentence was undoubtedly lenient, very lenient indeed. But could it be said to be so outside the norm as to represent a manifest error of principle? We think not. We are obliged to attach significant weight to the judge’s reasoning. In addition, there is precedent for an approach such as that adopted by the sentencing judge in an appropriate case.
44. In People (Director of Public Prosecutions) v Jennings (Court of Criminal Appeal, ex tempore, 15 February 1999) expression was given to what is sometimes referred to as “the last chance principle”. Thomas O’Malley in his work on Sentencing Law and Practice (3rd ed) describes this (at 8-18) as arising where a court faced with sentencing a recidivist offender may have reason to believe that the offender has reached a point where, for one reason or another, he or she seems intent on desisting from further crime. He suggests that any measure that will encourage the offender along the path of desistence should be considered seriously, even if it means imposing a more lenient sentence than the offence would otherwise deserve. Applying this approach in Jennings the Court of Criminal Appeal said:
“But there comes a time in everyone’s life, and it is a principle of sentencing as well, where the court detects that it may be make or break time. If he is given this, his last chance perhaps, he will hopefully take it and rehabilitate himself, get employment and become a useful member of the community”
45. We find further support for the sentencing judge’s approach in the circumstances of this particular case on the basis that the process of sentencing that enjoys the widest currency is that it represents an appropriate balancing of the concurrent, but sometimes conflicting, penal objectives of retribution and incapacitation, deterrence (general and/or specific) and rehabilitation. Moreover, at the heart of this balancing exercise, is the constitutionally mandated requirement that every sentence should be proportionate, both to the circumstances of the crime and to those of the perpetrator.
46. In the past it has been suggested by the former Court of Criminal Appeal in People (DPP) v GK [2008] IECCA 110 that a court in sentencing, or an appellate court in reviewing a sentence, “must examine the matter from three aspects in the following order of priority, rehabilitation of the offender, punishment and incapacitation from offending and, individual and general deterrence” (this Court’s emphasis), thereby suggesting that the penal objective of rehabilitation is always to be afforded the highest priority. While we do not now think that this is necessarily a correct statement of principle, and prefer an approach in which the correct prioritisation of penal objectives is to be determined by the circumstances of the particular case based on the evidence, we readily accept that in many cases it may indeed be appropriate to prioritise the penal objective of rehabilitation. There will, however, be other cases where it may be appropriate to prioritise deterrence, or retribution and incapacitation.
47. The sentencing judge in this case had abundant evidence to justify her decision to afford a high priority to the penal objective of rehabilitation. In our view she ought not to be criticised for doing so. She took the view that there required to be some custodial element to the sentence, but suspended the greater part of it both to reflect the mitigating circumstances in the case, which were substantial, and to incentivise rehabilitation on a last chance basis in circumstances where she was persuaded of the genuineness of the respondent’s commitment to changing his life. She had solid evidence to justify giving him that chance, and we are therefore satisfied that what she did was within the legitimate margin of appreciation available to her. In the particular circumstances of this case, the suspension of the final two years of the three year headline sentence was not so far outside the norm as to be regarded as unduly lenient.
48. We therefore dismiss the application.
People (DPP) v Molloy
[2018] IECA
37JUDGMENT of the Court delivered on 20th February 2018 by Mr. Justice Edwards
1. On 10th May 2017, the appellant pleaded guilty to an offence contrary to s. 15A of the Misuse of Drugs Act 1977. On 15th May 2017, the appellant was sentenced by a judge of the Dublin Circuit Court to a sentence of six and half years imprisonment backdated to 26th January 2016, the date on which he went into custody in the United Kingdom prior to his extradition to Ireland.
2. The appellant was arrested following a surveillance operation by the Gardaí in August 2002. He had been involved in the transportation by a van of 498kg of Cannabis valued at €6.324m. Upon his detention and interview, the appellant answered questions and made a number of admissions which were considered to be helpful to the Gardaí in their investigation of these offences. His case came on for trial in April 2004, the third trial date, and the appellant failed to appear having fled the jurisdiction. A warrant was issued for his arrest. He was subsequently located living in the Isle of Wight in the United Kingdom and was arrested on foot of a European Arrest Warrant and detained on 26th January 2016. Following extradition proceedings which were contested, the appellant was returned to Ireland on 16th August 2016. A trial date was set, but a plea was entered on 10th May 2017. In this appeal, the appellant claims that the sentence imposed was excessive.
The Appellant’s Circumstances
3. The appellant was born on 16th May 1962. He worked in the Equine industry both in Ireland and in Europe. He received financial assistance in setting up an Equestrian Centre. It appears that this may have been a front, but it is accepted that the appellant believed it to be a legitimate business. In relation to this offence, whilst the appellant admitted that he had a very good idea of what was happening, the Gardaí considered that he was used by other more serious criminals. It was accepted that this was a one-off situation and there was no suggestion that the appellant had been involved in a large way in this offence. It was accepted that he was put under pressure and that a number of threats had been issued to him and in respect of his horses. There was no evidence that he was a gang member or that he was gaining financially from this transaction. Gardaí stated that he was specifically set up in the Equestrian Centre due to his background in horses and it was seen by others as an ideal cover for a criminal enterprise. From the time of his detention, the appellant suffered a rapid deterioration of his mental health. He has made several serious attempts at suicide. There were in-patient stays in Lakeview Psychiatric Unit in Naas General Hospital.
The Sentencing Judge’s remarks
4. In sentencing the appellant the sentencing judge made the following remarks:
“The facts of this case are pretty clear. In one sense, it’s not an unusual type of case. It seems parties who were involved in transporting this large amount of drugs obviously wanted a way to bring the drugs into the country or bring them from certain other locations, obviously wanted, let’s say, the transportation of drugs separated from, so they would be difficult to follow. It seems the guards had certain information and were following a Mr David Dempsey. They followed him to the Poitín Stil and it seems there was some interaction with, I think, Mr Molloy at that stage. It seems a vehicle was given to Mr Molloy. I think he drove back to his equestrian centre and there, there was another vehicle which had been parked there previously. It seems that contained a large amount of drugs. It was a very significant amount of drugs, it seems. There was almost 600 kilos, if I’m not mistaken, of drugs involved, 498 kilos valued at €6.3 million in value at the time. It seems Mr Molloy, and probably other people, transported these drugs from this vehicle to the vehicle that was going to transport the drugs and it seems to me at this point in time, Mr Molloy must have known what was afoot. It seems he must have known this was illicit substances. He must have known there was a large amount of drugs involved and he must have known he was doing wrong. Now, at the time, it seems to me, Mr Molloy was in his 40s. It seems that he was old enough and mature enough to make a decision at this point either to involve himself or not involve himself. By reasons of fear, I suppose, by reasons of indecision, he didn’t make the right decision. He committed a huge error of judgment. He involved himself in this large drug dealing operation and it seems he loaded the drugs into this vehicle and drove the — this vehicle back to the Poitín Stil, where Mr Dempsey again took control of this vehicle and drove the vehicle until it was stopped by the guards. The guards searched the vehicle, found the drugs and obviously, it seems, searched Mr Dempsey’s residence and found more drugs and, I think, armaments or guns as well. It seems Mr Molloy eventually was detected and located. It seems he was interviewed, he co-operated and made admissions and it seems — but he took a trial date. It seems that he was in difficult — had mental health problems at this time and eventually bail was procured and it seems he basically ran. He basically didn’t show up for his trial date and since that time he has been living in the UK, working away and probably hoping that this day wouldn’t arrive. Eventually the guards in Blessington, I think, received certain information and it seems this information was good information, that the defendant was indeed living in the Isle of Wight and the wheels of justice began to turn and eventually he arrives back in this Court. Now, in deciding what to do about Mr Molloy, I must take into account the nature of the crime. The crime is serious. To involve oneself in the transportation of almost 500 kilograms of cannabis is a very serious offence. I believe there is a life — the maximum for this type of offending is a life sentence. Obviously, there is a mandatory minimum sentence of 10 years for this type of behaviour and as everybody here well knows, I have been given the discretion to depart from this mandatory minimum sentence where I find there is suitable circumstances. Now, suitable circumstances are — obviously are a plea, co-operation, admissions and such like. They are present in this case, there’s undoubtedly in the case. Now, Mr Molloy has his own history. It seems that he has no record whatsoever, it seems he wanted to have an equestrian centre and involved himself with obviously some unscrupulous people. I accept as a fact in this trial, a sentencing hearing, he didn’t know who he was involving himself with at the time by reason of the fact, it seems, a member of his extended family was the conduit to his involvement and therefore it seems to me he had no reason to believe that the people behind the financing of his equestrian centre were shady, if you want to put it that way, but obviously the facts of the crime speak for itself. Obviously he has no record before this event or after this event. I have to accept, I think, that it’s unlikely that Mr Molloy will involve himself in any serious criminality in the future. I also have to accept that he is remorseful for what he did. I also have to accept that there’s a certain toll. He has — I suppose he’s paid a price for what he did. He has probably been living under pressure and under fear for the last 12 or 13 years. I also have to accept, I think, that he is well capable of contributing to society and I have to accept that basically, in his case, he doesn’t need to be reformed by reason of the fact, I think it’s unusual — unlikely that he will reoffend in the future. Therefore, whatever sentence I am going to impose on this man is for punishment. He shouldn’t have involved himself in this crime, this very, very serious crime. Obviously what is aggravating in this case is that he left the jurisdiction and didn’t face justice. That’s an aggravating factor. Also, it seems that he took a trial date back when — in 2003 and again he took a trial date when he came — when he arrived back from the United Kingdom. So, therefore his pleas in this case are belated — or a plea is belated. Obviously in deciding the appropriate sentence, I have to look at and I have to take into account to some degree — I think it is, I suppose, persuasive what my colleague imposed upon Mr Dempsey. I accept that Mr Dempsey’s record was — I think he probably had a record and his involvement was more serious, but in relation to Mr Dempsey, he pleaded and he didn’t flee justice. So, basically, those are the differentiations. So, I am going to think about this matter until 2 o’clock and I’m going to give my decision at 2 o’clock today after lunch.
2. Having considered the matter over lunch he imposed a sentence in the following terms:
“Now, as I indicated before lunch, I consider this a serious crime. Obviously there is mitigation in the case, as outlined by your counsel, Ms Crowe. Obviously she has outlined what are the, I suppose, the strong mitigation in the case, but obviously the aggravating factors, as mentioned, are that you disappeared and … you left and lived in England for a considerable period of time. Now, I consider the appropriate sentence, taking all the factors into account obviously, including the mitigating factors, I think the appropriate sentence, is a term of imprisonment of six and a half years and that’s to be backdated to the date when you first went into custody in England. … [T]he warrant should indicate that he should be given full credit for all periods of time served in custody in relation to this matter alone. Obviously, because this is a 15A, the mandatory minimum sentence of 10 years, but there is reasons to depart in this case. That’s as low as I can go in the case, taking into account the seriousness of the crime you committed. Obviously it was huge error of judgment on your part.
The Ground of Appeal
5. The appellant appeals against the severity of his sentence on the following grounds:
a. The sentencing judge erred in law and fact in imposing a sentence, which was disproportionate and overly severe in all the circumstances.
b. The sentencing judge erred in law in the manner in which he imposed the sentence, a sentence which on its face failed to accord with the established principles of sentencing and from which it is impossible to determine what weight, if any, was given to the mitigation outlined above.
Submissions on behalf of the Appellant
6. It is submitted that the sentencing judge erred in principle, both having regard to the facts of the case and the manner in which the sentence was imposed. It is suggested that there was an over assessment of the gravity of the case and/or insufficient allowance for the mitigating factors in the case. The appellant draws the court’s attention to the level of offending, the unusual factual circumstances which led to that offending and which mark this case as one that could be described as exceptional on its facts. The appellant had no previous convictions and was renowned in mainland Europe and Ireland in Equestrian circles. He believed his business when it was set up to be a legitimate one. He was not involved in the overall offences. Although he admitted being aware that what he was doing was wrong, he had been put under considerable pressure, both in the context of threats against him and threats to kill some of the horses. His involvement in this incident was limited to 30 minutes. He cooperated in full with the Gardaí. There was no evidence that he was either a gang member or was gaining financially from the transaction. The appellant comes from a good, law abiding family and the entire process has been upsetting and shocking to him. The effect on his mental health outlined above has been profound. It was clear that there was no danger of his reoffending. It was accepted that he had the deepest remorse for his involvement in this offence. His co-accused, one David Dempsey, having pleaded guilty to a charge of s. 15A, received an 8-year sentence. This sentence represented additional charges to include a further 500kg of Cannabis which placed the total amount of drugs involved in his case at a value of approximately €11m. When he was arrested, two firearms and ammunition were found in his house. We have not been made aware, however, as to what were the mitigating factors in his case beyond the fact that he pleaded, or how the sentencing judge in his case approached sentencing.
Submissions of the Respondent
7. It was submitted that the sentencing judge had correctly identified the relevant aggravating factors as follows:
(i) The serious nature of the crimes;
(ii) the significant amount of Cannabis involved and
(iii) that the appellant did not attend his trial and fled the jurisdiction.
8. The judge also correctly noted that this was an offence which was intrinsically a very serious crime; that it attracted a life sentence and that that there was a presumptive mandatory minimum of ten years. The sentencing judge correctly identified the mitigating factors as the appellant’s plea; his cooperation with the Gardaí; his admissions; his remorse; the fact that he had no previous convictions and that there was no risk of reoffending. The sentencing judge had also noted that the appellant had fled the jurisdiction, that he had broken bail and that the plea in this case was a belated one. It was submitted that the sentencing judge could have taken, but did not seem to take, into account the fact that the appellant had fought his extradition. The sentencing judge also indicated that he had to take account of the sentence imposed by a colleague on David Dempsey, the co-accused, to some degree. He noted that Mr. Dempsey had pleaded and that he had not fled the jurisdiction. The sentencing judge also noted that there was a presumptive mandatory minimum sentence of ten years fixed by the Oireachtas. He decided that there were present certain specific and exceptional circumstances that allowed him to impose a sentence less than the presumptive mandatory minimum provided for. These were his plea, his admissions and his cooperation.
Discussion and Decision
9. This is yet another case in which this Court is faced with the difficulty that no headline sentence was identified, and no indication of the quantum of discount afforded for mitigation was given, by the sentencing judge. This creates a real problem for us in circumstances where the appellant is making the case that by virtue of where the sentencing judge ended up, which we do know, namely at a sentence of imprisonment for six and a half years, the sentencing judge must have either over-assessed the gravity of the offending conduct, or failed to have afforded sufficient discount for mitigation, or a combination of both of those things.
10. It is clear that in constructing his sentence as he did the sentencing judge has not followed the recommended best practice of this court as stated in The People (DPP) v Flynn [2015] IECA 290; The People (DPP) v Kelly [2016] IECA 204; The People (DPP) v Molloy [2016] IECA 239; The People (DPP) v Lynch [2018] IECA 1 and numerous other cases.
11. The practice commended involves a staged approach in which gravity is assessed in the first instance, with reference to the range of penalties available and taking into account culpability (including factors tending to aggravate or mitigate the intrinsic gravity of the offending conduct) and the harm done, leading to the nomination of a so-called “headline sentence”; and then in the second stage discounting from the headline sentence to take account of any mitigating factors not already taken into account (which will be those not bearing on culpability), and in that way to arrive at the appropriate ultimate sentence.
12. In The People (DPP) v Flynn we pointed out that:
“18. Since its establishment this Court has repeatedly and consistently sought to emphasise that this approach is regarded by it as best practice and we have sought to commend to trial judges that they explain the rationale for their sentences in that structured way, not least because a sentence is much more likely to be upheld if the rationale behind it is properly explained. Equally if this Court when asked to review a sentence cannot readily discern the trial judge’s rationale or how he or she ended up where they did having regard to accepted principles of sentencing such as proportionality, the affording of due mitigation, totality and the need to incentivise rehabilitation in an appropriate case, it may not be possible to uphold the sentence under review even though the trial judge may have had perfectly good, but unspoken reasons, for imposing the sentence in question.”
13. This may well be one of those cases. However, before addressing whether that is so it seems appropriate to say something further about the best practice commended by this Court. In jurisdictions such as our own where there is no rule making sentencing body such as a Sentencing Commission or Council established on a statutory basis, to formulate and promote sentencing guidelines, nor even a more informal system of appellate review assisted by an advisory non-rule making sentencing body, judicial discretion in sentencing is largely unconstrained. Judges must, of course, have regard to such statutory guidance as exists, for example where a statute sets a maximum penalty, or a presumptive mandatory minimum penalty, or specifies that a particular factor shall be regarded as aggravating, or indeed mitigating. Apart from that regard must also be had to constitutional principles such as the requirement that sentences should be proportionate, to sentencing principles as formulated by the superior courts at appellate level, to guideline judgments where they exist, and to relevant comparators where they are drawn to the attention of the court.
14. A judge is, however, otherwise at large in terms of how he or she constructs his/her sentence. The main reasons for the Court of Appeal’s present reluctance to insist upon the adoption of such a procedure, as opposed to merely commending it as best practice, stem firstly from a concern that to impose too rigid and formulaic an approach could potentially unduly inhibit the exercise of legitimate judicial discretion; and secondly from a recognition that, as stated more than once by the former Court of Criminal Appeal, the failure to adhere to a particular sentencing method or formula will not necessarily result in an incorrect sentence. Neither will adherence to a method or formula guarantee the imposition of a correct sentence.
15. Thus in People (DPP) v Fitzgibbon [2014] IECCA 12 the Court of Criminal Appeal had remarked with respect to the process of sentencing that “[t]here is no one way in which this needs necessarily to be done. There is no requirement for a sentencing judge to stick slavishly to any particular method or formula.”
16. Similarly, in People (Director of Public Prosecutions) v O’Byrne [2013] IECCA 93, the same court said:
“This Court does not consider that sentencing should be approached in an overly punctilious or pedantic way. The formulaic repetition of a checklist is not necessarily the sign of a proper sentence. The function served by having standard steps and criteria which are expected in any sentence is in the first place to remind the sentencer of the factors which need to be addressed, secondly to explain to interested parties and the public at large the reasoning process by reference to which the particular sentence is arrived at, and thirdly thereby to facilitate review in an appropriate case. However, it remains possible to arrive at a correct sentence without specifically invoking familiar headings as it is indeed possible to name check standard criteria and yet arrive at an incorrect sentence.”
17. Sentencing should therefore be about substance over form, rather than the reverse, although it is increasingly recognised based on parallel developments in the field of judicial review (see for example Mallak v Minister for Justice [2012] 3 IR 297 and Rawson v Minister for Defence [2012] IESC 26) that as an aspect of constitutional due process (see in that regard People (DPP) v Murphy [2017] IECA 6), and as an aspect of the right to a fair trial guaranteed by Article 6 ECHR (see Van de Hurk v Netherlands (1994) 18 EHRR 481 [61]; Ruiz-Torija v Spain (1995) 19 EHRR 553 [18-19] ; Hiro Balani v Spain (1995) 19 EHRR 566, 574 [27]; Also Taxquet v Belgium (2012) 54 EHRR 26), an accused is entitled to have the reasoning process, by means of which a sentencing court has arrived at the sentence which it has imposed upon him or her, rationally and adequately explained.
18. For many years there had been an intense debate amongst sentencing law scholars concerning whether it is best for a sentencing judge to adopt a discretion-orientated ‘instinctive synthesis’ approach as opposed to a staged, two (or more) tier, approach. In the former, the judge identifies all the factors that are relevant to the sentence, evaluates their significance and then makes a value judgment as to what is the appropriate sentence given all the factors in the case. In this approach, the sentence is determined only at the end of the process. The principal alternative approach is the staged, two (or more) tier, approach to sentencing in which the judge first assesses gravity and fixes a headline sentence, and then proceeds in a second stage or subsequent stages to discount for mitigating and other considerations, so as to arrive at a final or ultimate sentence. The staged, two (or more) tier approach still involves the exercise of judicial intuition or instinctive synthesis in each of its stages, but involves a more structured methodology, and some would argue that it provides for greater transparency in terms of how a sentence is constructed.
19. The debate in this regard has received considerable judicial attention in other countries, particularly in Australia where the (Federal) High Court of Australia, which had previously refused to be drawn into the methodological debate, finally grasped that nettle in the landmark case of Markarian v R [2005] HCA 25, an appeal from the Supreme Court of New South Wales, and favoured the instinctive synthesis approach over the staged approach. They declined however to set down a universal rule enshrining instinctive synthesis as the only permissible sentencing methodology, but instead opted to emphasise the discretionary nature of sentencing.
20. We have instead favoured the staged approach because it seems to us that it is likely to best focus judges at first instance on the overriding criterion of ensuring that sentences are proportionate both to the gravity of the offence and the circumstances of the offender, and in particular that the sentence “to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused” – see The People (DPP) v McCormack [2000] 4 IR 356. In addition, it has the advantage of producing better reasoned sentencing judgments, that better explain to the interested parties why a particular sentence was imposed and which are also more readily amenable to review at appellate level. Finally, we are not persuaded by the arguments against staged sentencing, namely that they do not allow for sufficient individualisation of sentences, that this methodology tends to give rise to more punitive sentences, that sentencing discretion is in some way corralled or restricted if a staged approach is adopted, and that the process is in a way illusory because judicial intuition has to be applied in any event at each stage.
21. Consequently, we do not consider the trial judge in this case to have been in error for his failure to follow the staged methodology that we recommend. However, it remains the fact that much of his reasoning is opaque to us as a result. We have said before that we will not interfere with a sentence imposed at first instance if at the end of the day that sentence “looks right”, but in this case we are not persuaded that that is the case. If the sentence had been better explained we might have been able to uphold it, but in the absence of any information concerning what level of discount was afforded for mitigation we are prevented from upholding the sentencing judge’s judgment in the particular circumstances of this case.
22. Once again we have had to have recourse to the unsatisfactory process of trying to reverse engineer what was done. Counsel for the respondent conceded that the appellant was entitled to a considerable discount for mitigation on account of his plea of guilty, albeit that it was late; his absence of previous convictions; his otherwise positive good character and contributions to his community as testified to in the numerous testimonials submitted on his behalf; his co-operation with the investigation, his mental health difficulties, his stated remorse, the fact that he has not been in trouble since, and the fact that it is accepted that he is unlikely to re-offend. When the Court posited the suggestion that cumulatively these factors might have entitled him to a discount of approximately a third on whatever the headline sentence was, counsel did not demur.
23. Approaching the matter on that basis, to have ended up at six and a half years the sentencing judge would have to have started somewhere north of nine years. We consider that that was too high in the particular circumstances of this case having regard to the individual culpability of this offender. We therefore consider that there was an error of principle in the assessment of the gravity of the case. It is true that the amount of drugs involved was substantial but that is only one factor to be taken into account in assessing gravity. The appellant’s involvement was relatively brief. While it seems that he knew, or certainly realised, what was afoot, it is accepted by the State that he acted under a degree of duress from shadowy and sinister figures who had set him up to be used.
24. In circumstances where we have found an error of principle with respect to the assessment of gravity it is unnecessary to consider the further grounds of appeal. It is appropriate to quash the sentence imposed in the Court below, and proceed to re-sentence the appellant. We note that he is an enhanced prisoner and has a good disciplinary record.
25. In terms of the assessment of gravity, the relevant range is from non-custodial options up to life imprisonment. There is also a presumptive mandatory minimum sentence of ten year’s imprisonment to be considered. We agree with the sentencing judge in the court below that exceptional circumstances exist in this case, having regard to the plea and the material assistance rendered, to permit this Court to depart from the presumptive mandatory minimum. Having regard to this accused’s individual culpability, including the aggravating factors identified by the respondent and the mitigating factor of duress, but also taking into account the quantity of drugs involved, we consider that the appropriate headline sentence was one of seven and a half years. We would reduce that by one third to reflect the mitigation in his case not already taken into account, to arrive at a final sentence of five years’ imprisonment. The sentence is again to be backdated to the 26th of January 2016.
26. We are not suspending any portion of the final figure of five years in circumstances where there is no pressing need to do so to specifically incentivise rehabilitation. It is accepted that this accused is unlikely to re-offend. We want to emphasise that this is a factor we have taken into account and it does not go unrewarded. It requires to be stated that but for this fact this accused would certainly have received a higher sentence, and while it might have had associated with it a partly suspended sentence to incentivise rehabilitation, the appellant would have been required to serve more actual prison time.
People (DPP) v GK
, Court of Criminal Appeal, July 31, 2008
Judgment of the Court delivered on the 31st day of July 2008 by Finnegan J.
In the week preceding the date fixed for trial the applicant pleaded guilty to a count of aggravated sexual assault He was not arraigned on a second count of threat to kill contrary to section 5 of the Non-fatal Offences against the Person Act 1997 but it was agreed that this could be taken into account in sentencing. He was sentenced to life imprisonment. The Criminal Law (Rape) Amendment Act 1990 section 3 pursuant to which the applicant was charged provides as follows:
“(1) In this Act ‘aggravated sexual assault’ means a sexual assault that involves serious violence or the threat of serious violence or as such is to cause injury, humiliation or degradation of a grave nature to the person assaulted.
(2) A person guilty of aggravated sexual assault shall be liable on conviction on indictment to imprisonment for life.
(3) Aggravated sexual assault shall be a felony.”
The offence was committed about midnight between Friday the 17th September and Saturday the 18th September 2004 in a County Dublin village. The victim W.H. was born on the 6th September 1982 and was then 22 years of age and lived in the same village as the applicant. She was then a shop assistant and having completed her day’s work on the Friday evening socialised with her workmates before getting a bus to her home. Her intention was to visit the home of a friend in the village and before doing so she stopped at an off-licence and having made a purchase proceeded to walk towards her friend’s house. As she was passing some waste ground the applicant came up behind her, put one hand over her mouth, another about her waist and forced her into an area of waste ground. He threatened her that if she made a noise he would “slice her” and “cut her throat”. He told her that he knew where her parents lived and that if she told the police or her parents he would burn their house down when they were all asleep. He told her that he knew her brothers and sister. The assault was perpetrated over a period of some seventy minutes. During the same he forced his victim to drink from a can of beer and in doing so damaged her teeth. As to the details of the assault it is sufficient to say that he performed oral sex on his victim and inserted his fingers into her vagina on a number of occasions. The threats made to the victim were credible and she believed them.
Following his arrest at interview the applicant gave an account of the evening in which he admitted in substance the acts complained of but maintained that they were performed, almost against his will, at the insistence of his victim. He persisted in this account and it was only in the week preceding the trial date that he acknowledged his guilt by pleading to a charge pursuant to section 3 of the Criminal Law (Rape) (Amendment) Act 1990.
The learned trial judge sentenced the applicant to imprisonment for life. It is clear from the transcript that at sentencing the learned trial judge took into account the following matters:-
1. The many dysfunctional features of the applicant’s background.
2. The details of the offence.
3. The credible threat to kill.
4. The credible threat to burn out the victim and her parents.
5. The applicant on the 20th July 1987 at Coventry in the United Kingdom was convicted of rape and sentenced to a term of eight years imprisonment.
6. On the 4th October 1999 the applicant was convicted of rape in this country and sentenced to a period of ten years imprisonment. In that case a date for review of sentence was given and on review he was released from prison in April 2004.
7. This offence was committed some six months after his early release.
8. The contents of a Probation Service Report. As explanation for his conduct the applicant gave that when he drank he thought of his ex-partners who had let him down and done him wrong over the years. The applicant has insight into his offending pattern which is a pattern of assault and violent sexual behaviour perpetrated on anonymous innocent young women. Having regard to his history of sexual offending prison is not a deterrent to him. He is at high risk of re-offending.
The learned trial judge concluded as follow:-
“I do not find in the case any mitigating factors other than the plea of guilty, which came on the date of the trial. I have sympathy for the highly dysfunctional factors in the accused’s background and would normally be bound to have regard to them but in the present case there is a greater counter consideration in that I have come to the view, that in all the circumstances of this case, I will not be adequately protecting the community and in particular what are described by the Probation Officer as ‘anonymous young women’ by imposing anything less than a life sentence and I sentence the accused to imprisonment for life to date from the 13th March 2006.”
The learned trial judge in passing sentence relied heavily on the judgment of this court in The Director of Public Prosecutions v Robert Melia (unreported) 29th November 1999 which was an application by the Director of Public Prosecutions pursuant to the Criminal Justice Act 1993 section 2. The respondent, having pleaded guilty to three counts of aggravated sexual assault contrary to section 3 of the Criminal Law (Rape) (Amendment) Act 1990 and other offences arising out of the circumstances of those assaults, was sentenced to nine years imprisonment on each of the counts of aggravated sexual assault and three years on each of the other offences, all the sentences to be concurrent. The three offences of aggravated sexual assault in that case were accompanied by violence and in two cases serious threats although, in the view of this court, the sexual details of the assaults were less serious than in the present case. The respondent had a previous conviction for rape for which he had been sentenced to six years imprisonment on the 30th July 1991 while the offences to which he pleaded guilty occurred in September and October 1997. The Probation Report on the respondent described him as representing a very serious risk to public safety. In giving the judgment of the court Keane J. (as he then was) said:-
“A sentence of nine years even with the final year suspended is undoubtedly (a reasonably significant custodial) sentence, but the court is satisfied, applying the principles already cited, that it cannot be said to reflect the gravity of the entirely separate offences of aggravated sexual assault and false imprisonment to which the respondent pleaded guilty. That, of itself, would be sufficient to raise at least a question as to whether the sentence imposed was unduly lenient within the meaning of section 2 of the 1993 Act. But there must also be taken into account not merely the other offences to which the applicant pleaded guilty but the disquieting fact that he had been convicted on a previous occasion of rape and had received a sentence of six years imprisonment. When to that is added the assessment of the Probation Officer that the respondent is a ‘very disturbed and dangerous man’, the conclusion is inevitable that the sentence in the present case erred on the side of undue leniency.”
The court substituted a term of twelve years imprisonment in respect of each of the counts of aggravated sexual assault. In so doing the court had regard to the previous conviction as relevant to the seriousness of the offence rather than as a factor relevant to mitigation of sentence.
In the first instance counsel for the applicant relied here upon a passage in Sentencing Law and Practice, O’Malley (2nd ed.) at paragraph 6.49:-
“Progressive loss of mitigation on the other hand is certainly justified when a person is convicted of an offence of some seriousness when he already has one or more convictions for the same or a similar offence. There is, after all, clear evidence that he has not responded to earlier sentences. By the same token a person convicted of a minor or trivial offence should not be given a disproportionately heavy punishment just because he has a criminal record even a record that includes serious offences.”
In short it is submitted that previous convictions are not an aggravating factor in terms of the seriousness of the offence but represent solely the absence of a mitigating factor in terms of the accused’s character and personal circumstances: thus while previous good character may result in a reduction of sentence, previous convictions will not result in an increase in sentence. Alternatively it is submitted that if a sentence should be increased by reason of the existence of previous convictions this would represent a form of preventive detention.
The Criminal Justice Act 1999, section 29, is called in aid. This provides as follows:-
“29(1) In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account –
(a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty and
(b) the circumstances in which this indication was given.
(2) To avoid doubt it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence.”
Counsel for the applicant focuses on the phrase in subsection (2) “exceptional circumstances relating to the offence”. “Offence” requires the court to have regard only to the facts and circumstances constituting the offence without regard to circumstances affecting the offender’s character and personal circumstances and so without regard in the circumstances in this case to his previous pattern of offending.
This court is satisfied that the duty of a sentencing court is to pass an appropriate sentence taking into account the particular circumstances of the crime and the particular circumstances of the convicted person: The People (Director of Public Prosecutions) v Tiernan [1988] I.R. 250. In The People (Director of Public Prosecutions) v M. [1994] 3 I.R. 306 at 317 Denham said:-
“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 the mitigating factors fall to be considered.”
In that case the court was considering whether sufficient weight had been given by the learned trial judge to nine mitigating factors identified by him. The court had not to consider, as had the trial judge here, a record of previous offending. More apposite is the decision of this court in The Director of Public Prosecutions v Melia where Keane J. in dealing with the sentences imposed for offences pursuant to section 3 of the Criminal Law (Rape) (Amendment) Act 1990 said:-
“But there must also be taken into account, not merely the other offences to which the applicant pleaded guilty, but the disquieting fact that he had been convicted on a previous occasion of rape and had received a sentence of six years imprisonment. When to that is added the assessment of the Probation Officer that the respondent is a ‘very disturbed and dangerous man’, the conclusion is inevitable that the sentence in the present case erred on the side of undue leniency”.
This court is satisfied that while previous good character is relevant to the character and circumstances of the accused which may be mitigating factors in terms of sentence previous convictions are relevant not in relation to mitigation of sentence but in aggravation of the offence. Accordingly in determining an appropriate sentence in this case it follows that the learned trial judge was entitled to have regard to the two previous convictions of rape, the fact that the offence was committed within six months of having been released from prison for an offence of rape and the matters disclosed in the Probation Service report. These circumstances are relevant not just in terms of their absence in mitigation of sentence but also in terms of assessing an appropriate sentence in terms of the seriousness of the offence, which sentence will be proportionately more severe than would be the case were these circumstances absent.
This court is further satisfied that such an approach to sentencing cannot be regarded as offending the principles enunciated in The People (Attorney General) v O’Callaghan [1966] I.R. 501 where it was held that bail could not be refused merely because of a likelihood that offences would be committed while on bail as that would be a form of preventive justice unknown to our legal system and contrary to the purposes of bail. Underlying the decision in that case is the principle that an accused person is entitled to the presumption of innocence, the fact that any imprisonment before conviction has a substantial punitive content and that 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 of which he has not been convicted. Previous convictions for the like offence and even more so multiple convictions form part of the matrix of circumstances to which the court should have regard in determining an appropriate sentence in terms of the seriousness of the offence while at the same time the court must not impose an inappropriately severe sentence where it apprehends the commission of further like offences.
Finally in regard to this submission this court rejects the construction sought to be placed upon the Criminal Justice Act 1999 section 29(2). In The People (Director of Public Prosecutions) v M [1994] 3 I.R. 306 Denham J. said:-
“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.”
The particular offender must be considered both in the assessment of the seriousness of the offence and in mitigation of sentence.
A guilty plea does not mitigate the seriousness of the offending conduct but is a factor which operates in mitigation of sentence, that is, it operates as a factor in the offender’s character and personal circumstances. The courts have consistently distinguished factors which aggravate or mitigate the offence and factors which mitigate sentence. Having determined the seriousness of the offence and determined a proportionate sentence the court has regard to the character and personal circumstances of the offender and considers whether these justify mitigation of sentence. A plea of guilty is a factor to be considered in terms of mitigation of sentence. This being so the court is satisfied that in referring to “exceptional circumstances relating to the offence” the legislature intended that a court should have regard not just to matters relevant to the fixing of an appropriate and proportionate sentence having regard to the seriousness of the offending behaviour but also to the personal circumstances of the offender.
Next on behalf of the applicant it is submitted that the learned trial judge did not have any or any sufficient regard to the plea of guilty, the applicant’s expression of remorse and regret and the personal circumstances and background of the applicant. As to the expression of remorse and regret it is a matter for the trial judge to determine whether or not expressions of remorse and regret are genuine and whether in all the circumstances they merit mitigation. The learned trial judge did not afford any weight to these expressions. Having regard to the conduct of the applicant in fabricating an account of the events of the evening in which he claimed that his victim had requested him to commit the acts constituting the offence, this court is satisfied that the learned trial judge was fully entitled to take this view. Again the learned trial judge expressly had regard to the dysfunctional factors in the applicant’s background but determined that in the context of the overall circumstances of the offence and of the offender mitigation of sentence was not appropriate. This court can see no error in principle in the manner in which the learned trial judge dealt with either of the foregoing matters. In relation to the plea of guilty reliance was placed on The People (Director of Public Prosecutions) v Tiernan [1988] I.R. 250 where Finlay C.J. stated at p. 255:-
“A plea of guilty is a relevant factor to be considered in the imposition of sentence and may constitute, to a lesser or greater extent, in any form of offence, a mitigating circumstance.
I have no doubt, however, that in the case of rape an admission of guilt made at an early stage in the investigation of the crime which is followed by a subsequent plea of guilty can be a significant mitigating factor. I emphasise the admission of guilt at an early stage because if that is followed with a plea of guilty it necessarily makes it possible for the unfortunate victim to have early assurance that she will not be put through the additional suffering of having to describe in detail her rape and face the ordeal of cross-examination.”
However the plea in this case came very late indeed. He was arraigned on the count to which he pleaded guilty on the 11th December 2006 having indicated his intention to do so approximately one week earlier. In the particular circumstances of this case it cannot be said that he spared his unfortunate victim much. The offence was committed on the 17th/18th September 2004. In his statements to the Gardai on the 29th September 2004 he described in graphic detail the acts which he had performed but maintained that his victim had begged him to perform the acts which ground the offence. Against this background this court is satisfied that there was no error in principle in the learned trial judge declining to consider the late plea as operating in mitigation of sentence. This is the case also in relation to the argument that the plea albeit late spared the victim something and the utilitarian arguments based on the saving of court time and the possibility that less pleas will be forthcoming if some recognition in terms of sentence is not afforded in respect of the same. The court is of this view notwithstanding the following circumstance. The applicant was originally charged with rape. Immediately upon the charge being reduced to one of aggravated sexual assault he intimated an intention to plead guilty and did so. In considering the merit of the plea regard must be had to the fabricated account of the events of the evening and the effect of this upon the victim from the date of the statement, the 29th September 2004, to the date of the plea, the 11th December 2006.
Finally it is submitted that the learned trial judge failed to consider the Sex Offenders Act 2001 section 28 and in particular to consider whether he should impose a sentence involving post release supervision. Section 28(2)(b) requires the court in considering section 28 to have regard to the need to protect the public from serious harm from the offender. This court is satisfied that in the present case it would be inappropriate for the court, having determined an appropriate and proportionate sentence, to reduce the same by reference to a period of post release supervision. The court is satisfied that the circumstances disclosed in the Probation Service Report are such that a period of post release supervision would be unlikely to serve the need to protect the public from serious harm from this offender.
Having considered the legal submissions made on behalf of the applicant the court must now move to consider whether in imposing a life sentence having regard to all the circumstances, both those relating to the offence and to the offender, the learned trial judge was in error of principle. The circumstances of the offence have been set out above. As remarked by Kearns J. in The People (Director of Public Prosecutions) v. R McC. and The People (The Director of Public Prosecutions) v. C.D. Supreme Court (unreported) 25th October, 2007:-
“The presence in a case of exceptional circumstances must now be seen in the light of section 29, as enabling a court, notwithstanding the existence of some mitigating circumstances, to impose a maximum sentence in rare and exceptional cases. That does not mean that the court is relieved of the obligation to consider all mitigating factors and give them due weight, but rather that, having done so, the court is not precluded from passing such maximum sentence. It would however be an essential requirement when imposing a maximum sentence against a backdrop of a guilty plea that the court would identify those exceptional circumstances in such a way that would make it absolutely clear why the maximum sentence is warranted when there had been mitigating factors in the case. Such instances will of necessity be rare and confined to those cases where the offences represent the worst imaginable variation of the offence in question”.
In the case of People (DPP) v. “M” [1994] 3 I.R. 306 and 315, Egan, J., (nem. diss.), held that a sentencing judge in imposing a sentence:-
“should look first at the range of penalties appropriate to the offence and then decide whereabouts on the range the particular case should be. The mitigating circumstances should then be looked at and an appropriate reduction made.”
This decision was followed and further expounded in the case of People (DPP) v. Kelly [2006] 1 I.L.R.M 19 (CCA) per Hardiman, J. The law is correctly stated by Professor Thomas O’Malley in the second edition of his work on “Sentencing Law Practice” at page 91 as follows:-
“A court must not begin by positing a tariff for the type of offence before it. It should instead determine where the particular offence lies on the overall scale of gravity, having regard to the standard indicia of seriousness. It should then decide on an appropriate sentence, disregarding for the moment any mitigating factors. Finally of course it must consider any such factors that may be present and give due credit for them, thereby reducing the sentence that will otherwise have been appropriate.”
Having regard to the jurisprudence of this Court and of the Supreme Court the matters which determine the gravity of a particular offence are the culpability of the offender, the harm caused and the behaviour of the offender in relation to the particular offence.
There can be no doubt here but that the applicant committed a sexual assault on the victim which included elements of aggravation. The evidence of Detective Sergeant Forsythe to the sentencing judge was that the applicant came from behind the victim, put one hand over her mouth and another hand around her waist and said “If you make noise or shout I will slice you”. After he had sexually assaulted the victim he said to her, “if you tell the police or mammy or daddy I will come down and burn the house when they are all asleep”. The learned sentencing judge found that this was a credible threat. These are clearly threats of serious violence within the above cited definition of “aggravated sexual assault”. Therefore in the view of this Court the culpability of the applicant has to be of a very high level.
The nature and the extent of the attack on the unfortunate victim in this case may be summarised as follows:-
(1) She was attacked from behind and dragged from the public road onto an isolated area of waste ground where it was very dark.
(2) She was threatened as indicated above and was forced to drink a can of beer which was forced into her mouth with such violence that it chipped two of her teeth.
(3) She was partly undressed by the applicant and made to lie down.
(4) The applicant touched her breasts, bit her stomach, performed oral sex on her, repeatedly penetrated her vagina with his finger.
(5) He took her money and her mobile telephone.
(6) The humiliating and degrading sexual assaults lasted for approximately 70 minutes.
Though the victim did not receive any psychological or psychiatric treatment, it is clear from the Victim Impact Statement that the effect of this sexual assault on her was very grave. She was unable to work for four weeks. The cost of treatment to her damaged teeth is €2,900. Her enjoyment of life has been permanently impaired in that her sense of security in society has been lost and she has become overcautious in moving about during daylight hours and is afraid to go out at night unaccompanied. This is a very great imposition in the case of a single lady of twenty five years of age.
While the assault was very serious and serious harm was undoubtedly done to this unfortunate victim in this case, having regard to the types of indignity, physical abuse and depravity to which other victims of aggravated sexual assault have been subjected and to the effects which their ordeal has had on some victims, the Court is satisfied that this particular aggravated sexual assault lies in the mid to upper range of seriousness on the scale of gravity of such assaults.
The Court is satisfied that the applicant’s behaviour on the occasion was premeditated. He acted out his confessed violent sexual fantasies about women on this vulnerable young women conforming to his pattern of previous offending. The exculpatory statement which he made to the Members of An Garda Síochána on 29th September, 2004 is a clear indication of the disturbingly gross and violent nature of these fantasies. He had been ruminating and fantasising in a violent sexual way about women and he followed the victim when she was walking away from a business premises and assaulted her.
This Court has to consider what is the appropriate sentence for this particular crime because it was committed by this particular offender. The Court does not participate in an exercise in vengeance or seek to retaliate against the applicant on behalf of the victim. (People (A.G.) v O’Driscoll [1972] 1 F.R.E.W.E.N. 351 at 359: People (DPP) v. “M” [1994] 3 I.R. 306: People (DPP) v. McCormack [2000] 4 I.R. 356 at 359 and People (DPP) v Kelly [2005] 1 ILRM 19). In discharging this function, this Court examines the matter from three aspects in the following order of priority, rehabilitation of the offender, punishment and incapacitation from offending and, individual and general deterrence.
This Court has to consider whether there is a reasonable possibility of the applicant re-entering society as a rehabilitated member having served what in this case must be a lengthy sentence of imprisonment. As was pointed out by Fennelly J. in delivering the judgment of this Court in People (DPP) v Cole (31st July, 2003), the Court would be failing in its duty if it failed to impose such a sentence for this serious offence committed by this applicant.
The author of the Probation Report on the applicant found that the applicant had insight into his offending pattern and that it was therefore critical that he receive therapeutic counselling within the Prison Service. Significantly, the author is not prepared to put the matter further than that this may (emphasis added) assist him in controlling his emotional needs, sexual deviance, anger and substance abuse. Because of the applicant’s previous history of repeated sexual offending, his deeply dysfunctional background, his lack of education, his substance abuse, his lack of marketable skills, his difficulties in social integration, his failure to persevere in the Sex Offenders Programme during a previous period of incarceration and the fact that custody, (in his case long terms of imprisonment), does not appear to be a deterrent, the author concluded that the applicant represented a high risk of re-offending a conclusion which this court considers to be entirely appropriate and justified.
While some encouragement should still be given to this applicant to rehabilitate himself, having regard to his previous propensity to re-offend despite his having served quite significant custodial sentences, and his unwillingness to accept treatment for his very serious problems, this applicant’s rehabilitation will have to take place in a custodial context.
This applicant must be incapacitated from reoffending for a long time by way of a long term of imprisonment. This custodial sentence must also reflect the censure of society on the applicant for his shocking crime in the instant case. While being careful to abide by the principle of proportionality this Court should also take into account an element of individual and general deterrence. Having regard to the information before this Court as to the character, disposition, circumstances and previous record of the applicant, the term of the sentence in this case will have to be increased substantially from that which the Court might otherwise consider appropriate for this particular aggravated sexual assault. Such an increase is necessary to remove the applicant’s capacity to offend, to eliminate so far as possible his desire to re-offend and to reduce the likelihood of a reoccurrence of his offending on his release from imprisonment. In the opinion of the Court the object of general deterrence, causing others who might be tempted to commit similar aggravated sexual assaults on females to desist, must also be met.
In the case of People (DPP) v “MS” [2000] 2 I.R. 592 at 600 and 601, Denham J., held that in cases relating to sexual offences a sentence may incorporate an element of protection of society, something which can sometimes be best achieved by supervised release. If this Court were to impose a sentence for the particular offence only, it would not provide this element of protection where the evidence before the sentencing judge establishes that the applicant has a high propensity to reoffend. However, there is an important balance to be struck here between the obligation of the judicial arm of the State to protect the citizens and in particular the vulnerable citizens of the State and its obligation to vindicate the constitutional rights of the individual even if that individual is a recidivist. In advancing the former desideratum the Court cannot disregard the fundamental principle that punishment should be proportionate to the particular offence committed by the particular offender. The applicant cannot be sentenced again for past offences and he cannot be sentenced in anticipation for offences which he has not committed and which he might never in fact commit. The concept of deterrence and of the protection of society, which can be advanced in a number of ways, is a permissible input into sentencing in our jurisprudence, (for example, O’Driscoll case (ante) and “MS” case (ante)), but to a limited extent only consistent with the proportionality principle and must not be conflated with a form of general preventive incarceration which is not part of our jurisprudence. An indeterminate sentence of life imprisonment could not be imposed on a repeat offender solely on this basis.
It is clear from the facts of the R.McC. and C.D. cases that the Supreme Court was not suggesting that only the ne plus ultra of these offences – if indeed this could ever be defined or measured – should attract the maximum statutory penalty of life imprisonment, but rather that the sentencing judge must be fully satisfied that the circumstances attending the commission of the particular offence were of an extremely violent reprehensible or degrading nature. Even though the circumstances of this applicant’s assault on this victim were very shocking, the Court is satisfied that it could not rationally or reasonably conclude that the circumstances surrounding the commission of this particular aggravated sexual assault were of such a very exceptional nature. Therefore, the court concludes that the imposition of a sentence of life imprisonment on the applicant amounted to an error in principle.
In mitigation the Court has regard to the fact that the applicant pleaded guilty to the charge of aggravated sexual assault even if only at the commencement of the trial. While the applicant’s personal and social circumstances are deserving of very great sympathy, the Court does not see that there is any correlation between them and his aggravated sexual assault on this unfortunate young lady.
The Court will treat this application for leave to appeal as the hearing of the appeal. The Court will set aside the sentence imposed by the learned trial judge and will substitute therefor a sentence of sixteen years imprisonment from the 13th March, 2006 but will suspend the final three years of that term on the applicant entering into a bond to keep the peace and be of good behaviour for a period of five years from his release. The Court will in addition impose a period of ten years post-release supervision on the applicant.
DPP -v- John Costolloe
[2009] IECCA 28 (02 April 2009)
Judgments by
Result
Finnegan J.
Other (see notes)
Notes on Memo: Applicant refused leave to appeal against sentence
COURT OF CRIMINAL APPEAL
43/07
Finnegan J.
de Valera J.
McMahon J.
DIRECTOR OF PUBLIC PROSECUTIONS
.v.
JOHN COSTELLOE
APPLICANT
Judgment of the Court delivered on the 2nd day of April 2009
by Finnegan J.
The applicant pleaded guilty to the possession of drugs for sale or supply contrary to the Misuse of Drugs Act 1977 as amended. The offence was committed on the 1st September 2004. He was sentenced to twelve years imprisonment with the last two years thereof suspended. A co-accused Séan Hanley was sentenced to ten years imprisonment. The circumstances of the offence are as follows.
On the 1st September 2004 Gardai carried out surveillance of a Volvo motor car. The applicant was the driver and the co-accused Séan Hanley a front seat passenger. The Gardai switched on the flashing blue light and an attempt was made by the Volvo to evade the Gardai. A package was thrown from the passenger window. This was recovered and was found to contain amphetamines with a value of approximately €45,000. The applicant was arrested and at interview exercised his right to silence. He did not co-operate with the Gardai. He exercised his right to silence under section 17 of the Criminal Justice (Drug Trafficking) Act 1996. On the second day of his trial he changed his plea to one of guilty.
At sentencing the applicant relied upon a number of reports. He informed the Probation Service, according to the report, that his passenger, Sean Hanley, had no knowledge of the drugs and that the applicant had instructed him to throw them from the car. That report contained a risk assessment: the applicant if he is to reduce the risk of re-conviction in the future must disassociate himself from his companions and address problems in relation to employment and addiction. A psychiatric report was submitted from which it appears that while he had been a drug user and had difficulties with suppliers in relation to monies owed for drugs he was off cocaine at the time of the offence.
The applicant was born on the 16th March 1981 and is now aged twenty seven years. He has had a partner for the past eight years and they have two children aged five years and three years.
He has nine previous convictions including the following:-
15th June 2006: section 49 Road Traffic Act 1961.
15th March 2006: section 6 Criminal Justice (Public Order) Act 1994: sentenced to two months imprisonment suspended for twelve months.
26th October 2004: Criminal Justice (Public Order) Act 1994.
10th March 2004: section 2 Non Fatal Offences against the Person Act 1997 assault: sentenced to community service one hundred and twenty hours.
10th March 2004: Criminal Justice (Public Order) Act 1994.
18th November 1998: section 112 Road Traffic Act 1961: sentenced to community service two hundred hours.
In the course of the sentencing hearing counsel on behalf of the applicant relied on the applicant’s plea of guilty. He offered the opinion that there was a statable defence. He concluded as follows:-
“As I say, the only mitigating factor that can be raised at all is the fact that he has put his hands up, to his own detriment and I hasten to add, and I can tell you on the record I am not one bit happy about it, but there that is the reality.”
The learned trial judge in these circumstances was required to have regard to section 27(3B) of the Misuse of Drugs Act 1977 as inserted by section 5 of the Criminal Justice Act 1999. On this appeal on behalf of the applicant it was submitted that the sentencing process was truncated and that without sufficient enquiry the learned trial judge held that none of the relieving features of section 27(3C) applied. Further the learned trial judge failed to give sufficient weight to the mitigating circumstance relied on and failed to give appropriate credit for the plea of guilty.
The learned trial judge’s ruling on sentence is indeed pithy. In relation to mitigating circumstances he had this to say:-
“I can find no mitigating circumstances. Mr Costelloe went to trial. He changed his plea from that of not guilty to guilty on the second day of the trial. He, in his interviews, was of no great assistance to An Garda Siochána. I take on board what has been said by his partner, Ms Wyse, and I can understand his father’s upset. I have before me a Probation Service Report of the 5th February 2007 which sets out pretty fairly, I think, Mr Costelloe’s background and current circumstances. It also sets out that he owed money to drug dealers; but unfortunately people who owe money to drug dealers are all the more vulnerable to be used as mules to ferry drugs from point A to point B, which seems to be part of what was going on on this occasion.
Because of the value of the drugs being at the bottom range of a section 15A offence, although it is a multiple of the €13,000 nominally, I will impose a sentence of twelve years imprisonment and I will suspend the last two years of that, the condition being that he keep the peace and be of good behaviour towards the people of Ireland on his own bond of €100, that two years to be suspended for a period of two years, his bond to be taken before the Governor at whatever prison he is then incarcerated in.”
The maximum sentence for an offence under section 15A as provided for in section 27 as amended of the Misuse of Drugs Act 1977 is one of life imprisonment. However section 27 as amended goes on to provide as follows:-
“(3B) Where a person (other than a child or young person) is convicted of an offence under section 15A the court shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than ten years imprisonment.
(3C) Subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than ten years imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matters it considers appropriate including –
(a) whether that person pleaded guilty to the offence and, if so, (i) the stage at which he indicated the intention to plead guilty and (ii) the circumstances in which the indication was given, and,
(b) whether that person materially assisted in the investigation of the offence.”
The court is not confined to consideration of the matters mentioned at (a) and (b) in subsection (3C) but will have regard to all the circumstances which are exceptional and specific relating to the offence. It is likewise the case that all circumstances which are exceptional and specific relating to the offender are to be regarded. In this case, in the view of the court, the only relevant circumstance that could be relied upon is the plea of guilty. As is clear from the extract from the sentencing ruling quoted above this circumstance was indeed taken into account by the learned trial judge and he did not regard it as an exceptional and specific circumstance for the purposes of section 27(3C). The learned trial judge was correct in this. In Director of Public Prosecutions v Ducque, unreported, Court of Criminal Appeal 15th July 2005 Geoghegan J. said:-
“In considering whether the latter subsection applies or not, a plea of guilty without more and especially a late plea could not normally be taken into account because it would rarely if ever constitute ‘ exceptional and specific circumstances’.”
The approach to be adopted by the sentencing judge in relation to this offence appears clearly from the judgments of this court in a number of cases including Director of Public Prosecutions v Ducque, Director of Public Prosecutions v Chipi Renald, unreported 23rd November 2001, Director of Public Prosecutions v Galligan, unreported 23rd July 2003 and Director of Public Prosecutions v Lernihan, unreported 18th April 2007. The sentencing judge’s first task is to arrive at the appropriate sentence. The amount or value of the drugs is relevant. The provisions of section 15A make clear that the legislature regard this offence as serious in that the maximum sentence provided for is one of life imprisonment and subject to subsection (3C) the presumptive minimum sentence is one of ten years imprisonment. Even where exceptional and specific circumstances exist which would render the statutory minimum term of imprisonment unjust the presumptive minimum sentence cannot be ignored. Bearing the statutory provisions in mind a sentencing judge must first determine the appropriate notional sentence. In so doing he must bear in mind the statutory provisions. He must have regard to the circumstances of the offence and the particular offender. This requires consideration of circumstances which aggravate or mitigate the offence and circumstances relating to the offender relevant in mitigation of sentence. If the resulting sentence is a term of ten years or greater then that is the sentence to be imposed. Only if the notional sentence is less than ten years will it be necessary to consider section 27 subsection (3C).
In this case the learned trial judge in arriving at an appropriate sentence expressly had regard to the value of the drugs. He noted the applicant’s lack of co-operation with the Gardai at interview. He had regard to the evidence of the applicant’s partner Ms Wyse and of his father. He had regard to the applicant’s personal circumstances as disclosed in the Probation Service Report and a psychiatrist’s report. Finally he had regard to the plea of guilty and the time at and circumstances in which it was entered. He having carefully considered these matters the court can find no error of principle in the sentence in fact imposed.
The fact that the applicant was accepted by the learned trial judge as being “a mule” is a factor to be taken into account in determining the appropriate sentence. The fact that he owed money for drugs supplied to him is also a factor to be taken into account. The learned trial judge did not regard the late plea of guilty having regard to the time at which it was entered as a mitigating factor for the purposes of section 27(3C). The learned trial judge gave no reason for suspending two years of the sentence. The late plea or the nature of the applicant’s involvement in the drugs industry as a mule may explain the suspension of the last two years of the sentence imposed. However it must be borne in mind that a mule plays an important part in the drugs industry and without the mule’s involvement those involved at a more significant level would be less likely to escape detection, prosecution and conviction. The role of the mule is important and significant to those who operate at a higher level. However as the suspension represents a significant concession to the applicant this court will not interfere with the same notwithstanding that the basis for the same is unclear. The court is satisfied that the sentence imposed is appropriate having regard to the applicant’s involvement, the circumstances of the crime and the applicant’s circumstances and accordingly the sentence imposed is not in error of principle.
On behalf of the applicant there were available in court three testimonials. The learned trial judge refused to have regard to the same and confined himself to oral testimony on oath together with the Probation Report and the psychiatrist’s report. While such testimonials are frequently received and considered on consent, the learned trial judge was entitled to confine his consideration to evidence on oath and the reports admitted and to exclude from consideration the written testimonials.
On behalf of the applicant it is submitted that the sentence imposed on him is disproportionate to that imposed upon his co-accused who received a sentence of ten years imprisonment. It is a settled principle of sentencing that persons who have been parties to the commission of the same offence should, all other things being equal, receive the same sentence. It is equally well settled that difference in the degree of involvement in the offence and the personal characteristics of the co-accused such as age, background, previous criminal history and general character will justify a different sentencing outcome. People (D.P.P.) v Poyning [1972] I.R. 402 and People (D.P.P.) v Conroy (No. 2) [1989] I.R.160. It is irrelevant that the sentences may be imposed by the same court at the same time or by a different court or at a different time.
The court has had the benefit of the transcript of the sentencing hearing which followed the conviction of the co-accused Séan Hanley. Each co-accused was sentenced by a different court. The applicant was sentenced on the 26th February 2007 and Séan Hanley on the 10th June 2008. Séan Hanley gave an account of his involvement consistent with innocence but the same was not accepted by the jury. His account was that he was coming to Dublin for a wedding and that he got sick on the way. He met the applicant who drove him to Dublin. In Dublin he was not well enough to attend the wedding and returned to Limerick with the applicant. He was unaware of the presence of the drugs. It is of some significance that the applicant’s account exonerated Séan Hanley from any guilty involvement save and except that he was asked by the applicant to throw the drugs from the car. Having regard to the fact that Séan Hanley was found guilty it is reasonable to treat the co-accuseds as having equal involvement in the offence. There are differences in the personal circumstances of each of the co-accused. Séan Hanley was aged forty eight years at the date of sentence. He had then previous convictions in the period 1980 to 2006. A number of the offences were precipitated by his grief reaction to his son being killed and which killing led to a conviction for manslaughter. He suffers from a number of physical and psychiatric ailments which are significant and which will make his time in prison particularly difficult. One is a prolonged grief reaction to the death of his son which had resulted in admissions to a psychiatric hospital. He suffers from diabetes which in his case reduces his life expectancy. In his history there were a significant number of attempts at suicide. He continued to be at a high risk of completed suicide. Without going into more detail these personal circumstances are matters which the sentencing judge could take into account and which distinguish him from the applicant. In addition the sentencing judge was apprised of the sentence imposed on the applicant. These circumstances justify the very minor discrepancy between the sentences imposed on each of the co-accused.
Having regard to the foregoing the court refuses the applicant leave to appeal.
DPP v Z
[2014] IECCA 13
Judgment of the Court delivered by Mr. Justice Clarke on the 18th March, 2014.
1. Introduction
1.1. The accused/appellant (who, in order to preserve the privacy of the victims, the Court will refer to as “Mr. Z”) pleaded guilty on the 30th November, 2011, to fourteen sample counts of rape and child cruelty against four of his daughters. Those pleas of guilty were late pleas as, on the previous day, the 29th November, Mr. Z had pleaded not guilty to 271 counts of rape and cruelty. Mr. Z was sentenced by Carney J. on the 9th December, 2011, to life imprisonment on each of the counts of rape and 2 and 7 years respectively (being the maximum sentence permitted in each case) on the counts of cruelty. The remaining counts were, after a discussion with counsel, taken into consideration.
1.2. The sentencing judge had available to him a comprehensive account of the appalling and depraved abuse, both physical and sexual, inflicted by Mr. Z on his four daughters over a prolonged period of time. In all the circumstances, as pointed out, the sentencing judge imposed the maximum sentence permitted in respect of each of the offences and in particular imposed a sentence of life imprisonment in respect of each of the counts of rape. It is as against those sentences, and in particular the imposition of the life penalty, that Mr. Z appeals. While it was accepted by counsel that, as a matter of practicality, it was only the life sentences which would affect the length of time which Mr. Z would spend in prison, nonetheless, it was said that the other sentences were wrong in principle and were reflective of what was said to be the erroneous approach of the sentencing judge. As the question of the appropriate range of sentences available to a trial judge in a case such as this was the subject of some debate at the sentencing hearing, the Court will turn firstly to that hearing.
2. The Sentencing Hearing
2.1. In the course of the sentencing hearing, a discussion occurred between the sentencing judge and counsel for the prosecutor/respondent (“the DPP”) concerning the appropriate approach to sentencing in a case such as this. Initially, counsel for the DPP submitted that the case was, on its facts, at the top end of the range. There could be little doubt, on the basis of the evidence, that counsel was correct in that regard. It would frankly be difficult to overestimate to the severity of the many cruel and depraved crimes committed by Mr. Z against his own children.
2.2. Thereafter, however, the trial judge sought further assistance from counsel for the DPP in relation to the actual range of sentences which might be considered appropriate for a case of this type being one at the top end of the range. Having taken instructions, counsel submitted that the top end of the range, even in cases where there has been a plea of guilty, permitted either a very lengthy determinate sentence or a life sentence. In that context, counsel made reference to the decision of Charlton J. in the Central Criminal Court in Director of Public Prosecutions v. Drought (Unreported, Central Criminal Court, 4th May 2007).
2.3. The Court should, at this stage, indicate that, in its view, such an exchange is entirely appropriate. For many years it was the practice in criminal courts for the prosecution not to offer any view on sentence as such. Clearly evidence was led as to any circumstances material to the exercise of the courts sentencing role, including evidence as to aggregating factors or as to previous convictions. However, it was not the practice for counsel for the prosecution to offer any view to the trial judge as to how the factors present in an individual case ought convert into an actual sentence or range of sentences.
2.4 Whatever may have been the merits of such a practice in the past, it seems to this Court that such a practice can no longer be justified, at least since the introduction of a system of appeals, on the basis of undue leniency, which can be taken by the DPP (s. 2 of the Criminal Justice Act 1993). It seems to this Court that it is incongruous that the DPP should be entitled to criticise on appeal, on the basis of undue leniency, a sentence imposed by a sentencing judge without having first suggested to the sentencing judge the sentence or range of sentences which it was submitted ought be considered appropriate.
2.5 In that context it is also important to note that there have been developments which ought assist, at least in many types of cases, the prosecution in being able to place such guidance before a sentencing judge. First, this Court has endeavoured, in a number of areas, and in appropriate cases, to conduct an analysis of the case law in relation to sentences for particular types of offences and give some general guidance as to the type of sentences which might be appropriate for offences with a particular level of seriousness along the spectrum. An example can be seen in Director of Public Prosecutions v. Carl Loving [2006] 3 IR 355, which sets out a detailed structure in respect of the factors to be taken into account when sentencing for child pornography offences. These factors were recently summarised in Director of Public Prosecutions v. Brian O’Byrne (Unreported, Court of Criminal Appeal, 17th December 2013) (see also Director of Public Prosecutions v. Derrick Stronge [2011] IECCA 79 in relation to the offence of dangerous driving causing death and Director of Public Prosecutions v. Brian Wall [2011] IECCA 45 in relation to undue leniency applications in respect of sentences imposed for offences under s. 15A of the Misuse of Drugs Act 1977). There is no reason why the attention of a sentencing judge should not be drawn to such decisions and submissions made as to where, in the light of the analysis by this Court, the offence in question is said to lie along a spectrum of severity. In many of the cases this Court had endeavoured, as it will do in this case, to identify the principal factors which will ordinarily influence a decision as to where along the spectrum of seriousness of the offence concerned a particular offence might lie. In some cases, this Court may endeavour to provide further guidance as to how such factors may convert into actual sentences. For example, in a judgment delivered today in Director of Public Prosecutions v. Ryan, a formation of this Court (differently constituted in part) sought to give such guidance in relation to sentencing for certain firearms offences. Likewise in a further judgment delivered today in Director of Public Prosecutions v. Fitzgibbon similar guidance is given in respect of assault causing serious harm.
2.6 In addition, there is increasingly information available through the ISIS (Irish Sentencing Information System) project, which provides details as to the range of sentences which are typically imposed by sentencing judges for particular types of offences.
2.7 In this Court’s view, there is now an obligation on the prosecution to draw to the attention of a sentencing judge any guidance, whether arising from an analysis carried out by this Court or from ISIS or otherwise, which touches on the ranges or bands of sentences which may be considered appropriate to any offence under consideration and the factors which are properly, at least in ordinary cases, to be taken into account. In many cases, this should not impose any significant burden on the prosecution for the sources ought be easily recognised. In addition, it seems to this Court that it is incumbent on the prosecution to suggest, where such guidance is available, where the offence under consideration fits into the scheme of sentencing identified and why that is said to be the case. Finally, the prosecution should indicate the extent to which it is accepted that factors urged in mitigation by the defence are appropriate and give at least a broad indication of the adjustment, if any, in the overall sentence which it is accepted ought to be considered appropriate in the light of such mitigation.
2.8 Without engaging in such an exercise, it is unfair that the sentencing judge should be capable of being criticised on appeal by the DPP for undue leniency where the DPP has not suggested to the trial judge the sentence or range of sentences which is said to be appropriate in the first place. If a sentencing judge imposes a sentence outside the range suggested by the DPP, then it is, of course, open to the DPP to appeal, provided that the divergence from what is said to be an appropriate approach to sentencing involves an error of principle. But that right of appeal carries with it an obligation to indicate, in advance, to the sentencing judge, what the DPP considers the proper approach should be in the first place.
2.9 It should also be acknowledged that assistance on sentence from the DPP of the type identified in this judgment can only be conducive to creating greater consistency and must also lead to a reduction in the number of appeals. It does also need to be emphasised that the obligation is a general one but should not be taken to extremes. Where, for example, counsel for the DPP is aware that a particular judge has been regularly addressed on the appropriate parameters for a particular offence in the recent past, there is no need for a formulaic repetition of the same submissions in every case. It is, however, important to emphasise that the obligation on the DPP is to provide real assistance on the question of sentence which goes beyond vague generalisation.
2.10 Of course, the sentencing judge is in no way bound by the submissions of the DPP. It is open to defence counsel to submit that the case falls in a different part of the spectrum or that the range of actual sentences suggested by the DPP in respect of a particular part of the spectrum does not reflect an appropriate approach in accordance with decided cases or other relevant sources. Obviously, in addition, it is also open to defence counsel to put forward any matters which are urged in mitigation and to indicate the effect that such matters ought have on sentence subject, of course, again, to the entitlement of counsel for the DPP to comment on any such mitigating factors and the weight to be attached to them.
2.11 It is the case here that the trial judge has imposed the maximum sentence of life imprisonment. In substance the case made on this appeal on behalf of Mr. Z is that the imposition of the maximum sentence was, in all the circumstances, inappropriate.
3. Discussion
3.1. A starting point has to be a consideration of s. 29 of the Criminal Justice Act 1999 (“the 1999 Act”), which provides, in subsection (2), that, for the avoidance of doubt, a court is not precluded from passing the maximum sentence in respect of any offence, notwithstanding a plea of guilty, if the court is satisfied that there are “exceptional circumstances relating to the offence which warrant the maximum sentence”. Subsection (1) also provides that the court should take into account the stage at which the person indicated an intention to plead guilty and the circumstances in which any such indication was given.
3.2. It follows that there is no barrier, as a matter of law, to the court imposing a life sentence in respect of rape, notwithstanding a plea of guilty. However, it equally follows that in order to impose a life sentence the court must be satisfied that there are exceptional circumstances in accordance with the section.
3.3. The Supreme Court had occasion to consider the effect of s. 29 in Director of Public Prosecutions v. R. McC. [2008] 2 IR 92. The unanimous judgment of the court was given by Kearns J. At p. 102 of the report, Kearns J. began to consider the sentencing jurisprudence which pre-dated the enactment of s. 29 of the 1999 Act. Kearns J. noted that it had always been accepted that a plea of guilty is a mitigating circumstance “which normally attracts some reduction of sentence”. However, Kearns J. went on to note that the amount of any reduction was very dependent on the stage in the proceedings at which it was offered. Kearns J. held that s. 29 did not give effect to a substantial repeal of the well established jurisprudence on sentencing to which he had referred. However, Kearns J. did note that s. 29 enabled a court, when there were exceptional circumstances and notwithstanding the existence of some mitigating circumstances, to impose a maximum sentence in rare and exceptional cases. As Kearns J. pointed out that does not mean that the court is not under a clear obligation to consider all mitigating factors and accord them due weight, but rather that there may be cases where, even having done so, the maximum sentence may nonetheless be imposed.
3.4. It is also of some relevance to note that Kearns J. quoted with approval from the decision of this Court in The People (Director of Public Prosecutions) v. C.D. [2004] IECCA 8 where, in delivering the judgment of this Court, McCracken J. said the following:-
“While the trial judge in the present case did not expressly refer to that section, nevertheless there could be no error in principle if he was satisfied that there were exceptional circumstances which would warrant a maximum sentence.”
3.5. It is important to note that Kearns J. emphasised that it was important for sentencing judges who propose to impose the maximum sentence to set out with some clarity what circumstances concerning the offence were found to be exceptional. However, in the light of the approval of the comments of McCracken J. in C.D., it does not seem to this Court that the Supreme Court in R. McC. was indicating that there must be a formulaic recital of the fact that there were exceptional circumstances. Rather what the Supreme Court determined was that it should be clear from the ruling of the sentencing judge, both that the sentencing judge found in substance there to be exceptional circumstances and also what those circumstances were.
3.6. Before leaving the decision in R. McC. and the decision in C.D. referred to in it, it is appropriate to note the findings that gave rise, on the facts of those cases, to exceptional circumstances. In C.D., McCracken J. referred to:-
“… a combination of the breadth of the outrages, the fact that the rape and sexual assaults were systematic, the fact that four daughters were involved, the fact that the offences took place over a period of 20 years and the impact on the victims. This is a combination of factors which he was certainly entitled to regard as exceptional by any standards. Accordingly, this Court considers that he was entitled as a matter of principle to impose life sentences.”
3.7. Likewise, in considering the case then before the Supreme Court in R. McC., Kearns J. referred to:
“the horrific nature of the rapes and the prolonged period during which the “campaign” of offences took place, involving as they did multiple victims of tender years, were such as to justify categorisation in the very worst category, particularly having regard to the fact that the victims were daughters of the offenders and in the case of the first defendant his nieces also. It is impossible to conceive of a greater breach of parental responsibility than occurred in these cases. Quite clearly, the maximum sentence should be reserved for the worst variant of the offence in question. I am satisfied that there were those exceptional circumstances common to both cases such as to permit the imposition of life sentences despite the mitigating circumstances of the plea of guilty present in both”.
3.8. It is striking that, in both of the cases then under consideration, what was regarded as exceptional was the prolonged and horrific nature of the abuse carried out by a parent on children.
3.9. Against that background, it is appropriate to consider both the factors urged in favour of the proposition that there are exceptional circumstances in this case and the factors urged on behalf of Mr. Z which suggest that a maximum sentence was excessive to the extent of amounting to an error of principle on the part of the sentencing judge.
3.10. So far as exceptional circumstances are concerned, attention is drawn to the severity and prolonged nature of the crimes including the extraordinary cruelty and depravity (both physical and sexual) shown, together with the fact that Mr. Z had 87 previous convictions, mostly relating to sexual abuse against another daughter in respect of which he had pleaded not guilty and had been convicted before the Central Criminal Court in November, 2010. The facts disclosed that the daughter involved in that case had had two children by Mr. Z as a result of a multiplicity of rapes. Mr. Z was sentenced to fourteen years for those offences.
3.11. So far as the offences currently before the Court themselves are concerned, counsel on behalf of the DPP drew attention to what is correctly said to be the level of depravity displayed by Mr. Z, the level of violence associated with and contemporaneous to sexual abuse, the gross breach of trust involving the father of the injured parties and the lengthy duration of time over which those injured parties were subjected to systematic physical and sexual degradation. In addition, attention is drawn to a factor taken into account by the trial judge, being threats to kill the victims, which threats were taken very seriously by the children concerned.
3.12. On behalf of Mr. Z, it is suggested that insufficient account was taken of the plea of guilty, even though it was late, and in particular the fact that it nonetheless saved the injured parties from having to give evidence.
3.13. It is said that the trial judge did not properly consider whether there were sufficient exceptional circumstances to meet the requirements of s. 29 and that the trial judge failed to have sufficient regard to the dysfunctional background and alcohol abuse of Mr. Z, together with any possible rehabilitation. It is also said that undue weight was placed on the threats to kill, and, indeed, as a separate ground, that the approach of the sentencing judge in relation to those threats was itself wrong in principle.
4. Conclusion
4.1. The test is as to whether there are exceptional circumstances surrounding the offence which would warrant the imposition of the maximum penalty of life imprisonment notwithstanding such mitigating factors as there may be. While it may always be possible to envisage a worse case (abuse might have gone on for a longer period or involved more children or had different, and arguably more depraved, features), nonetheless, in order that it might be said that there are exceptional circumstances relating to the offence, it is not necessary that it be impossible to envisage an even more serious offence of the type concerned. What is required is that the particular offence not only be of a very serious type of the offence concerned but be so in an exceptional way.
4.2 While it might have been preferable for the sentencing judge to have identified the features which he considered rendered these offences exceptional, this Court has no doubt that a fair reading of the sentencing judge’s ruling as a whole makes it clear that he considered that the evidence which he had heard placed this case in the exceptional category. It seems clear from the first two paragraphs of the transcript of the trial judge’s ruling on sentence that he considered the facts as had been recorded on the transcript of the sentencing hearing as in indicating a range of offending “both as regards multiplicity of offences and the heinousness of the acts making up the constituent parts of each individual crime” as giving rise to exceptional circumstances. This view is confirmed by the fact that, in the first part of the final sentence in para. 2, the sentencing judge states that he is satisfied that “a life sentence [is] warranted on the facts of the case”.
4.3 This Court is strongly of the view that the sentencing judge was more than entitled to come to such a conclusion on the evidence before him. As noted earlier there are striking similarities, at least at a broad level, between the offences to which Mr. Z ultimately pleaded guilty and the offences which were under consideration in both R. McC. and C.D. While, as the Court has already noted, it will be always possible to point to certain distinctions, it seems clear to this Court that those two cases and this case all fall into an exceptional category which involves prolonged and depraved sexual and physical violence against persons who are entitled to place their trust in the perpetrator. There may, of course, be other exceptional circumstances which could arise on the facts of other cases. However, this Court is of the view that offences of this type are such as entitle a sentencing judge to take the view, depending on the severity and nature of the abuse concerned, that exceptional circumstances exist which might justify, even in the presence of some mitigating circumstances, the maximum sentence of life imprisonment. The exceptional circumstances in such cases are to be found in the nature of the offences themselves.
4.4 That is not to say that the sentencing judge does not have to consider such mitigating circumstances as were present, for if they were sufficiently weighty, it might be that the maximum sentence would not be justified notwithstanding the exceptional nature of the crimes. As pointed out by Kearns J. in R. McC., the effect of s. 29 is that a maximum sentence can be imposed even though there may be some mitigating factors which might, in an ordinary case, require to be reflected in a somewhat reduced sentence. In substance s. 29 requires the Court to balance the exceptional nature of the offence (if that be found) with such mitigating factors as are present and clearly permits the court, in an appropriate case, to take the view that the exceptional nature of the offence outweighs any mitigation present so that the maximum sentence can still be imposed.
4.5 Against that background, it is necessary to look at the mitigating circumstances put forward. The plea of guilty was very late. It occurred the day after Mr. Z had initially pleaded not guilty. There was, therefore, no prior intimation that a contested trial was not going to take place. It is true that, as counsel urged, the victims were saved the ordeal of having to give evidence by the plea of guilty, however late, and that there are policy reasons for encouraging guilty pleas. However, a great deal of the anxiety which victims feel stems from the anticipation of having to give evidence in the context of a contested case where it might reasonably be anticipated that their evidence will be strongly challenged. While the timing of a plea will always be relevant, it seems to this Court that it is particularly relevant in serious sexual offence cases such as this, for an early plea will remove from the victim at least some of the anxiety which victims will necessarily feel concerning an impending trial. A late plea is, therefore, of little value.
4.6 Next, it is said that the trial judge erred by indicating that the only way in which the victims could be protected (given the threats made by Mr. Z) was by the imposition of a life sentence. It is, of course, the case, as counsel for Mr. Z argued, that our sentencing law does not permit persons to be imprisoned simply for the purposes of preventing other crimes. Convicted persons are required to receive the appropriate sentence which reflects the offence and the offender. Having served such a sentence, a convicted person is entitled to be at large and can be no more subject to continuing imprisonment for the protection of the public than any other person about whom there might be legitimate concerns as to the commission of future offences, but who has not, as yet, been convicted of any.
4.7 However, this Court is not satisfied that, on a fair reading of the entirety of the judgment of the sentencing judge, it can be said that the trial judge fell into the error of imposing an impermissible sentence for the purposes solely of protecting against future crimes. The sentencing judge was entitled to take into account the very serious and credible threats made by Mr. Z to his victims in reaching an assessment as to whether this was, indeed, the sort of exceptional case which would warrant a maximum sentence even in the presence of mitigating factors. It is clear that the sentencing judge was satisfied that the nature of the offences themselves were sufficient to render them exceptional. There can be no doubt but that the sentencing judge was entitled to take that view.
4.8 Finally, it is said that the sentencing judge failed to take any adequate account of the dysfunctional background of Mr. Z and his abuse problems. In taking the view that those factors were of little weight, the sentencing judge made reference to an unnamed decision of Murray C.J. to the effect that the voluntary consumption of drink or drugs does not amount to mitigation and to the ruling of this Court delivered by Geoghegan J. in Director of Public Prosecutions v. Martin Stafford [2008] IECCA 15 to the effect that an accused’s dysfunctional background provides little mitigation. This Court has, in a judgment also delivered today, in the case of Director of Public Prosecutions v. Adam Fitzgibbon, made clear that the suggestion that drink or drugs abuse and a dysfunctional background can never be a mitigating factor of any great weight is not a proposition which can properly be derived from those cases. This Court agrees with the analysis of that issue in Fitzgibbon. It is clear, therefore, that there may be cases where either or both, or particularly a combination of, a dysfunctional background and substance abuse, can be a factor which needs to be materially taken into account.
4.9 What Murray C.J. emphasised in the case referred to (which was Director of Public Prosecutions v. Keane [2008] 3 IR 177) was that the fact that an offence was committed while someone was under the influence of drink or drugs could not, of itself, be taken to be a mitigating factor. What Geoghegan J. emphasised in Stafford was that many persons with difficult backgrounds do not fall into criminality and that a difficult background cannot, of itself and without more, be taken to be a significant mitigating factor. However, that is not to say that a sentencing judge is not required to take into account all the circumstances of the case and, if it be appropriate on the facts, take into account the circumstances of the offender, including any particularly severe dysfunctional background and persistent difficulties with abuse most especially where those difficulties are connected with such a background and where such problems are being or are likely to be addressed. It might, therefore, on one view, be said that the sentencing judge in this case did not give adequate consideration to those factors. However, having reviewed the evidence which was available to the sentencing judge, this Court is of the view that, on the facts of this case, any mitigation which might derive from background or substance abuse could not possibly outweigh the exceptional nature of the offences themselves.
4.10 A like comment can, in the Court’s view, properly be made in respect of any prospect of rehabilitation. That such a prospect is a matter which the Court must always take into account cannot be doubted. However, the weight to be attached to such consideration is very much dependent on the facts of the individual case. Where a cogent basis is put forward for suggesting that there is a real prospect of rehabilitation, same may carry significant weight so far as mitigation is concerned. In contrast, where any hope of rehabilitation is purely speculative, little weight may attach. In addition, it must be noted that any such speculative hope of rehabilitation will be present in virtually every case. The whole point of s. 29 of the 1999 Act is that it may nonetheless be permissible to impose the maximum sentence notwithstanding limited mitigation. Mitigation which would be present in virtually any case can not, therefore, of itself, necessarily exclude the imposition of the maximum penalty in an exceptional case. If it could, it would have the effect of rendering the section largely inoperative.
4.11 In those circumstances, this Court is of the view that such mitigating factors as were present were not of a sufficiently weighty nature as would have precluded a sentencing judge from imposing the maximum sentence given the horrific and exceptional nature of the crimes for which Mr. Z was to be sentenced. In those circumstances, this Court is of the view that the sentencing judge was entitled to impose the maximum sentence of life imprisonment and that there was no error in principle in the sentencing judge taking that approach. For those reasons, this Court will dismiss the appeal.
The State (P. Woods) v. Attorney General
Henchy J.
[1969] IR I.R. 385
HENCHY J. :
30 May
Patrick Woods (whom I shall call the prisoner) was convicted by a jury in the Central Criminal Court and sentenced on the 9th March, 1967. The charge was office-breaking and larceny, contrary to s. 26 (1) of the Larceny Act, 1916. He was sentenced”to be kept to penal servitude for a period of seven years but upon the completion of 36 months of such sentence order that the residue of such sentence be suspended provided the accused has obeyed prison discipline and enters into a bond himself in the sum of £500 upon the conditions that he will keep the peace and be of good behaviour towards all the People of Ireland for the residue of the sentence.” Having got an enlargement of time within which to apply to the trial judge for a certificate giving leave to appeal against conviction and sentence, he applied to the trial judge for such certificate on the 11th May, 1967, and the application was refused. On the same day he served a notice of application for leave to appeal to the Court of Criminal Appeal against such refusal.
In the meantime, upon his conviction and sentence, the prisoner had been lodged in Mountjoy Prison on a warrant made out on foot of the order of the Central Criminal Court. On the 10th May, 1967, the Minister for Justice, in exercise of his statutory powers in that behalf, made an order transferring the prisoner to Portlaoise Prison. He is still being detained in that prison. On the 12th December, 1967, he applied to and obtained from Mr. Justice Kenny a conditional order of habeas corpus on the ground that the warrant of the Central Criminal Court was bad in law and contrary to the Constitution. A notice showing cause was given on behalf of the Governor of Portlaoise Prison and the Attorney General on the 20th December, 1967. The prisoner then served a notice of motion dated the 22nd December, 1967, to have the conditional order made absolute.
The next step was taken by the prisoner. He abandoned his appeal to the Court of Criminal Appeal by a notice of abandonment dated the 28th February, 1968. This he was entitled to do under Order 86, r. 24, of the Rules of the Superior Courts, 1962. If the previous practice of the Court of Criminal Appeal had prevailed, that would have been the end of the appeal except for a formal ruling by that court. The prisoner need not have come to court and need not have made any further submissions to the court. However, as appears from the file of the Court of Criminal Appeal, the assistant registrar of the court wrote on the 11th March, 1968, to the prisoner as follows:”Your Notice of Abandonment dated 28th February, 1968, has been received in this Office. The matter will be listed for ruling on the Notice of Abandonment on Wednesday, the 13th March at 11 a.m. I am informed that the Attorney General may oppose the dismissal of your application for leave to appeal on foot of the Notice of Abandonment. In these circumstances I am requesting the Governor to make arrangements to bring you before the Court of Criminal Appeal on Wednesday next, if you so wish, to move the dismissal in person.” In the light of subsequent events, the intervention of the Attorney General may have been due to the fact that he was not entirely happy to rely on the order and warrant of the Central Criminal Court for the purpose of showing cause in the habeas corpus proceedings, and he may have wished for a fresh order and warrant from the Court of Criminal Appeal on which he and the Governor of Portlaoise Prison could rely more firmly to justify the detention.
When the matter came before the Court of Criminal Appeal on the 13th March, 1968, the prisoner was represented by junior counsel who submitted that, as notice of abandonment had been served, there was now no appeal before the court. Counsel for the Attorney General contended that the service of the notice of abandonment did not dispose of the appeal and that the appeal was before the court, and it was submitted that, as the sentence was unusual, the court should substitute for it a sentence of four years penal servitude simpliciter. On the application of counsel for the prisoner, the matter was allowed to stand over until the following day, when counsel for the prisoner asked for a further adjournment to enable senior counsel for the prisoner to be heard. The court refused to adjourn further and, on being told that counsel for the prisoner wished to make no further submissions, ruled that it had seisin of the appeal notwithstanding the notice of abandonment, and that it had jurisdiction to vary the sentence. It thereupon imposed a sentence of four years penal servitude from that date, without any suspension or proviso, in substitution for the sentence imposed by the trial judge. Counsel for the prisoner was then asked if he wished to apply for a certificate of leave to appeal to the Supreme Court (on the ground that the decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court) but this invitation was declined.
A fresh warrant was then issued, founded on the order of the Court of Criminal Appeal. The Governor of Portlaoise Prison and the Attorney General thereupon served a notice of further or additional cause in the habeas corpus proceedings, in which they rely primarily on the warrant of the Court of Criminal Appeal to justify the detention of the prisoner, and on the warrant of the Central Criminal Court only if the warrant of the Court of Criminal Appeal is held to be bad.
The matter now comes before me to decide whether or not the conditional order of habeas corpus should be made absolute. I deal with the grounds relied on in argument by counsel for the prisoner as follows.
I. A sentence of penal servitude is inconsistent with and repugnant to the Constitution.
The contention is that the sentence of penal servitude imposed on the prisoner, whether by the order of the Central Criminal Court or that of the Court of Criminal Appeal, in so far as it is permitted by the Penal Servitude Acts, 1853 to 1891, and s. 26 of the Larceny Act, 1916, is inconsistent with and repugnant to the Constitution. Counsel for the prisoner points to the preamble to the Constitution, which enumerates amongst the objects of the Constitution the assurance of the freedom of the individual; to Article 5, which declares that Ireland is a sovereign, independent, democratic State; to Article 40, s. 1, which provides that all citizens shall, as human persons, be held equal before the law, subject to the proviso that the State in its enactments may have due regard to differences of capacity, physical and moral and of social function; and to Article 40, s. 3, which gives a guarantee that the State shall in its laws respect, and, as far as practicable, defend and vindicate the personal rights of the citizen and, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
It is suggested that the statutory provisions which provide for, or permit, a sentence of penal servitude conflict with these constitutional declarations and guarantees, for the reason that the servitude that a man must suffer under such a sentence is inconsistent with the rights he is entitled to under the Constitution. In particular, reliance is placed on the disabilities which a convict may suffer under the Forfeiture Act, 1870. However, it is one thing to complain that certain provisions of the Forfeiture Act are inconsistent with the ConstitutionI express no opinion on that pointand another to say that a sentence of penal servitude is unconstitutional. In my view, none of the constitutional provisions relied on could be considered a bar to a sentence of penal servitude. However, apart from my opinion on the matter, this ground has already been raised and decided in the Supreme Court. The Supreme Court decided in Re Tynan1 that the Constitution contains no provision which could be considered as rendering a sentence of penal servitude unconstitutional. This ground fails.
II. The warrant of the Court of Criminal Appeal is bad as having been made without and in excess of jurisdiction.
The submission of counsel for the prisoner is that, once the prisoner had duly served a notice of abandonment, his appeal was terminated and his case was not validly before the Court of Criminal Appeal when it purported to dismiss the application for leave to appeal against conviction and to vary the sentence; and that the warrant issued on foot of that order cannot justify the detention of the prisoner, since the order was made without jurisdiction.
As far as my inquiries can ascertain, this is the first case in which the Court of Criminal Appeal has varied a sentence after a convicted person has lodged a written notice of abandonment. Cases where the convicted person orally withdrew, or sought to withdraw, his application or appeal in court are in quite a different category, for no right is given by the statutes or the rules of court to a convicted person to give an oral notice of abandonment, so the court may refuse to deem such notice good and has done so in a limited number of cases. What the Court of Criminal Appeal did in this instance was to deal with the case as if there had been no written notice of the abandonment and no argument had been addressed to that court in support of the appeal. Counsel for the prisoner was invited by the court to make submissions on behalf of his client, but he declined on the ground that his client had abandoned the appeal and that it was not properly before the court. Counsel for the Attorney General was heard and he submitted, apparently successfully, that the appeal was still before the court. The court then proceeded to dismiss the application for leave to appeal against conviction, notwithstanding the abandonment of such application, and, without either granting or dismissing the application for leave to appeal against sentence, varied the sentence. The question is whether the Court of Criminal Appeal, being a court of limited jurisdiction, acted within jurisdiction. If it did, then as far as this ground is concerned the warrant founded on the order of the Court of Criminal Appeal is good; otherwise it is bad.
The present Court of Criminal Appeal was established by s. 3 of the Courts (Establishment and Constitution) Act, 1961. Section 12, sub-s. 1, of the Courts (Supplemental Provisions) Act, 1961, provided that it shall be a superior court of record and shall, for the purposes of that Act and subject to the enactments applied by s. 48 of that Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it. Section 12, sub-s. 2, vested in it all jurisdiction which, by virtue of any enactment which was applied by s. 48 of that Act, was vested in or capable of being exercised by the Court of Criminal Appeal which was set up by the Courts of Justice Act, 1924. Amongst the sections vesting jurisdiction in the present Court of Criminal Appeal under s. 12, sub-s. 2, and s. 48 of the Courts (Supplemental Provisions) Act, 1961, are the following sections of the Courts of Justice Act, 1924:
“31. A person convicted on indictment before the Central Criminal Court . . . may appeal under this Act to the Court of Criminal Appeal under the following conditions:
(i) if the appellant obtains a certificate from the judge who tried him that the case is a fit case for appeal;
(ii) in case of refusal of such certificate if the Court of Criminal Appeal on appeal from such refusal grant leave to appeal.”
“34. The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court.”
The first thing to be noted is that there is no absolute or unconditional right of appeal from a conviction for an indictable offence. The convicted person may appeal only (i) if the trial judge certifies that the case is fit to be appealed or (ii) if he appeals successfully against such refusal and the Court of Criminal Appeal grants him leave to appeal. The statutes are silent as to how a case may be brought before the Court of Criminal Appeal; for this, we must turn to the rules of court. Order 86, r. 4, of the Rules of the Superior Courts, 1962, provides that a person who has got a certificate from the court of trial must serve on the registrar of the Court of Criminal Appeal a notice of appeal in the prescribed form if he wishes to go ahead with his appeal; a person who has been refused a certificate must likewise serve on the registrar a prescribed notice of application for leave to appeal. These are the only documents that need to be served by the convicted person and, once such a document is served, the case is before the Court of Criminal Appeal. Order 86, r. 5, states that a person who has got a certificate from the trial judge must serve notice of appeal within seven days from the grant of the certificate; and that a person who has been refused a certificate must serve notice of application for leave to appeal within seven days of such refusal. Order 86, r. 7, provides that, once a notice of appeal or a notice of application for leave to appeal is served, the registrar of the Court of Criminal Appeal must give notice of its receipt to (a) the Chief State Solicitor; (b) the proper officer of the court of trial; (c) the Commissioner of the Garda SÃochána; and, if the appellant is in prison or has been released on bail (d) the Governor of the prison, and (e) the Secretary of the Department of Justice; but if it was the Governor of the prison who forwarded the notice, he need not be notified of its receipt. Now that the case is before the Court of Criminal Appeal, the court of trial may not issue a certificate of conviction until the appeal or application for leave to appeal has been determined: Order 86, r. 13 (1). Once these notices have been given and the appropriate documents made available to the Court of Criminal Appeal, no further step is necessary for the application to come before the court for decision beyond notification of the date of hearing to the appellant or applicant, to the Department of Justice (Prisons Section), and to the Chief State Solicitor: Order 86, r. 23.
But there is one step the applicant or appellant may take before the hearing: he may abandon the application or appeal. This is provided in r. 24 of Order 86 which is in the following terms:
“24. (1) An appellant at any time after he has duly served notice of appeal or of application for leave to appeal or of application for enlargement of time may abandon his appeal or application by giving notice of abandonment thereof in the Form No. 20.
(2) When the Registrar receives a notice of abandonment of any appeal or application for leave to appeal he shall give notice thereof to all persons to whom he shall have given notice of the receipt by him of notice of such appeal or application for leave to appeal.”
This was the course adopted by the prisoner in the present case. He had served a notice, in the prescribed form, of application for leave to appeal. The relevant portion of it reads:”I, Patrick Woods, having been convicted of the offence of office-breaking and larceny and thereupon sentenced to 7 yrs. P.S. residue of such sent. to be suspended on completion of 36 months on complying with Court Order and having applied to the Judge who tried me for a certificate that my case was a fit case for appeal, and having been refused such certificate and being now a prisoner in Portlaoise Prison and being desirous of appealing against my conviction and sentence DO HEREBY GIVE YOU NOTICE that I will apply to the Court of Criminal Appeal for leave to appeal on the grounds hereinafter set forth.”
His notice of abandonment was also in the prescribed form and its relevant portion reads as follows:”I Patrick Woods having been convicted of felony at the Central Criminal Court on the 9th day of March, 1967, and having duly sent to the Court of Criminal Appeal a notice of application for leave to appeal against my said conviction and sentence of the order of the Central Criminal Court passed upon me on my said conviction do hereby give you notice that I do not intend further to prosecute my appeal, and that I hereby abandon all further proceedings in regard thereto as from the date hereof.” It was on the basis of that notice of abandonment that the prisoner contended before the Court of Criminal Appeal that his case was not before that court, and it is on the basis of that notice of abandonment that it has been contended before me that the Court of Criminal Appeal acted without jurisdiction in dismissing his appeal against conviction and in varying his sentence.
When the first Court of Criminal Appeal was set up by the Courts of Justice Act, 1924, rule 21 of the Criminal Appeal Rules, 1924, (following r. 23 of the English Criminal Appeal Rules, 1908) provided for a notice of abandonment in similar terms but with the addition of the words “and upon such notice being given the appeal shall be deemed to have been dismissed by the Court of Appeal.” The current English rule contains these words (see Archbold’s Pleading, Evidence and Practice in Criminal Cases (36th ed. 1966) at p. 323, but they were dropped from the rule dealing with abandonment (r. 25) in the Criminal Appeal Rules, 1956, which is substantially the same as the present r. 24 of Order 86. The omission of these words may have been due to a feeling that it was not in accordance with constitutional limitations that a rule of court should give the force of a dismiss by the Court of Criminal Appeal to a communication passing between a convicted person and the registrar of the court; or it may have been due to a desire to mitigate the harshness of the decision in The People (Attorney General) v. Rushe. 2 In that case two men who were convicted and sentenced were given certificates that their cases were fit to be appealed to the Court of Criminal Appeal. They duly lodged notices of appeal but later, without consulting their legal advisers, served notices of abandonment. They then applied to the Court of Criminal Appeal for leave to withdraw the notices of abandonment and to proceed with the appeals. The Court of Criminal Appeal, assuming but not deciding that it had jurisdiction to grant the application, held that that jurisdiction should be exercised only in special circumstances, but refused the application on the ground that special circumstances had not been shown. The corresponding English rule has been construed as meaning that the Court of Criminal Appeal will not allow a notice of abandonment to be withdrawn unless something amounting to mistake or fraud is shown, which would enable the court to hold that the notice of abandonment was a nullity: R. v.Moore. 3
In my opinion, the omission from r. 25 of the Criminal Appeal Rules, 1956, and from r. 24 of Order 86 of the Rules of the Superior Courts, 1962, of the provision as to a dismiss cannot be construed as giving the Court of Criminal Appeal jurisdiction to decide a case in which a notice of abandonment has been served. The jurisdiction of the Court of Criminal Appeal is appellate only; its appellate jurisdiction is confined to limited classes of criminal cases; within those classes it is confined to cases in which there has been a conviction; and within those cases again it is confined to cases in which the convicted person invokes the jurisdiction of that court. Neither the prosecution nor the court itself can set its jurisdiction in motion in any particular case. The convicted person may do so in any one of three ways; first, he may apply for an enlargement of time within which to serve notice of appeal or notice of application for leave to appeal: secondly, he may serve notice of application for leave to appeal or, thirdly, he may serve notice of appeal. If, having taken any one or more of these steps, he does not wish to proceed further, he is given by r. 24 of Order 86 an absolute and unqualified right to abandon his application or appeal. Neither the Court of Criminal Appeal nor the Attorney can gainsay him that right. When he exercises it, he debars himself from prosecuting his case further before the court. He cannot approbate and reprobate. He cannot blow hot and blow cold. By the formal act of serving a notice of abandonment he shuts himself out of the court, and he remains shut out as long as the notice of abandonment stands. It follows as a necessary corollary that the Court of Criminal Appeal no longer has any jurisdiction to deal with the case, for to hold otherwise would be to hold that it may dispose of his case in his absence which would be a violation of the rule of natural justice, audi alteram partem. Nor can the court give itself jurisdiction by inviting him (as the prisoner was invited in this case) to make his case, for that would be an abrogation of the legal effect of the abandonment. In the absence of a valid unabandoned notice of appeal, or application for leave to appeal, or application for enlargement of time to apply for leave to appeal, the court has no jurisdiction. The position is analogous to that which arises when, in the trial of an indictable offence, it is shown that no valid order has been made returning the accused for trial; in such circumstances the court has no jurisdiction: The People (Attorney General) v.Boggan. 4
I consider that Order 86, r. 24, of the Rules of 1962 should be construed under the general principle that unnecessary or unwanted litigation should not be proceeded with: interest reipublicae ut sit finis litium. Order 86, r. 24, is on a par with Order 26, r. 1, which enables a plaintiff to discontinue or withdraw in certain circumstances, save that in the abandonment of a criminal appeal no question of the other side’s costs arises. If a notice of abandonment is not given the full force of a notice of withdrawal or discontinuance in civil proceedingswhich removes the withdrawn or discontinued matter from the seisin of the Court I fail to see what value such a notice would be to the person who serves it. He would debar himself, but not the Attorney General, from taking part in the proceedings before the court, and the court could deem itself entitled, as it apparently did in this case,”to determine any questions necessary to be determined for the purpose of doing justice in the case before it” in accordance with s. 12, sub-s. 1, of the Courts (Supplemental Provisions) Act, 1961. It would be an ill-advised person who would serve notice of abandonment in such circumstances.
If the course adopted by the Court of Criminal Appeal in the present case were held to be a valid precedent, it would create a serious and far-reaching change in our law of criminal procedure and it would add appreciably to the responsibilities of defending counsel. Counsel’s duty to his client does not end with the jury’s verdict and the judge’s sentence. He will have to decide whether to apply to the trial judge for a certificate that the case is a fit case for appeal. If the certificate is granted, he will have to decide within seven days whether or not to serve notice of appeal and, if the certificate is refused, he will have to decide within seven days whether or not to serve notice of application for leave to appeal: Order 86, r. 5. Up to this it has been the practice at the Bar to advise the service of notice of appeal or notice of application for leave to appeal in the knowledge that, on more mature consideration, the appeal or application could be abandoned as of right and without risk to the applicant or appellant. If the order made by the Court of Criminal Appeal in this case were to be deemed good, that would no longer be the case. A new peril would have been added to the defence of crimes triable on indictment. The service of notice of appeal, or of notice of application for leave to appeal, might turn out to be an irretrievable step leading to disastrous consequences. For example, in the present case if at the end of three years of the sentence imposed by the trial judge the prisoner has obeyed prison discipline, he would then be entitled to be released on entering into a bond; whereas, because he happened to serve notice of application for leave to appeal which he later abandoned, he is now condemned to serving approximately two extra years penal servitude. In these circumstances he might well ask what use it was to give him an unqualified right to abandon his application without leave of the court, when the court proceeded to deal with the application to the extent of adding approximately two years to what might have been his effective sentence.
There are many reasons why a convicted person might wish to abandon an appeal or an application for leave to appeal. He may decide simply to accept the order of the trial judge. He may think that his chances of succeeding would not justify going ahead. He may be advised that the Court of Criminal Appeal would be likely to uphold his objections to the trial but yet rule that there was no miscarriage of justice; or that it might order a new trialwhich he might strongly wish to avoid because of the expense or the possibly unfavourable outcome of a new trial. He may fear that the Court of Criminal Appeal might increase the sentence or otherwise vary it to his detriment. Furthermore, in an appropriate case the court may quash the sentence passed at the trial and order the appellant to be kept in custody as a criminal lunatic, in the same manner as if a verdict of guilty but insane had been found at the trial: s. 35 of the Courts of Justice Act, 1924. In fact, the court’s jurisdiction is so wide that, if the law were that a notice of abandonment did not deprive the court of seisin of the application or appeal, the convicted man would be well advised to engage counsel to represent his interests before the court. If he were not legally aided, this expense not to speak of the worry as to the outcome of the appealwould be an unfair additional punishment of a person who was prepared to accept the order of the court of trial. The position would be even more unfair if his case were dealt with without his being heard; but in my opinion he cannot be heard while his notice of abandonment stands.
The fact that notice of abandonment given pursuant to Order 86, r. 24 (1), operates to divest the Court of Criminal Appeal of jurisdiction is borne out by the fact that r. 24 (2) of that order requires the registrar of that court, when he receives the notice of abandonment, to give notice of it to the persons whom he had to notify when he received the notice of appeal or of application for leave to appeal. I cannot see what would be the point or purpose of such notification to the county registrar, the Commissioner of the Garda SÃochána, the governor of the prison, or the Secretary of the Department of Justice, if the appeal or application still remained to be heard by the court. On the contrary, I consider that the purpose of such notification is to inform each of those persons, and the Chief State Solicitor, that the appeal or application is at an end and that the conviction and sentence stand. I am confirmed in this opinion by s. 30, sub-s. 4, of the Road Traffic Act, 1961, and Part VI of the Road Traffic (Licensing of Drivers) Regulations, 1964 (S.I. No. 29 of 1964), which presume that an appeal is at an end when notice of withdrawal of an appeal (which in the context includes a notice of abandonment) is given in cases where a disqualification order under the Road Traffic Act, 1961, has been made by the court of trial. In such cases, provision is made for the implementation of the disqualification order upon the service of the notice of withdrawal without waiting for an order from the court of appeal.
My conclusion, therefore, in the present case is that the Court of Criminal Appeal had no jurisdiction to make the order which it made and that the warrant of that court is not a good justification for the prisoner’s detention.
III. Even if the order of the Court of Criminal Appeal is held to have been made within jurisdiction, the Court itself is unconstitutional in so far as it is a court of appeal from the High Court sitting as the Central Criminal Court.
It is submitted by counsel for the prisoner that s. 3 of the Courts (Establishment and Constitution) Act, 1961which established the Court of Criminal Appealand s. 12, sub-ss. 1 and 2, and s. 48, sub-ss. 3 and 5, of the Courts (Supplemental Provisions) Act, 1961, which provide for its jurisdiction, are repugnant to Articles 34 and 37 of the Constitution in that these Articles do not permit, and by necessary implication preclude, the interposition of such a court of appeal between the High Court and the Supreme Court. Since I have already held that the order of the Court of Criminal Appeal was made without jurisdiction, it is not necessary to decide this ground. Nor do I consider it desirable to do so. This ground seeks a decision from the High Court to the effect that the Oireachtas transgressed the Constitution in enacting certain statutory provisions. The jurisdiction to give such a decision is specifically vested in the High Court by Article 34, s. 3, sub-s. 2, but the exercise of that jurisdiction must be considered in the light of the Constitution as a whole.
Every judge of the High Court (like all other judges appointed under the Constitution), upon his appointment and before entering on his duties as judge, makes and subscribes a declaration in which he solemnly and sincerely declares that he will uphold the Constitution and the laws: Article 34, s. 5, sub-s. 1, of the Constitution. The duality of this obligation postulates a concordance between the Constitution and the laws. But, inevitably, there will be occasions when a judge cannot uphold both the Constitution and a particular law, because of an inescapable incompatability between the Constitution and the law. In such cases the duty of the judge is clear: he must fearlessly strike down the law as being repugnant to the Constitution which is the paramount law of the State. But the Courts will not lightly or casually declare an enactment of the Oireachtas to be unconstitutional. The Constitution declares that the sole and exclusive power of making laws for the State is vested in the Oireachtas, and no other legislative authority has power to make laws for the State: Article 15, s. 2, sub-s. 1. In deference to the investiture of the law-making
functions exclusively in the Oireachtas, and in recognition of the comity that ought to exist between the great organs of State, the Courts have repeatedly laid down that, save in the case of laws expressly prohibited by the Constitution, there is a presumption in favour of the constitutionality of Acts of the Oireachtas and that the onus is on the person challenging the Act to rebut that presumption and to establish clearly any repugnancy: In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940 5; In re Art. 26 of the Constitution and the School Attendance Bill, 1942 6; Buckley and Others (Sinn Féin) v. Attorney General and Another 7; O’Donovan v. Attorney General 8; Ryan v.Attorney General. 9 This self-imposed limitation of the power of judicial review is also applied in the American Supreme Court: U.S. v. Steffens. 10 Our Supreme Court has refined the doctrine of presumption of constitutionality by ruling that where two or more constructions of a statute are reasonably open, one being constitutional and the other or others unconstitutional, the Court will presume that the Oireachtas intended only the constitutional construction and uphold that construction; it is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant: McDonald v. Bord na gCon. 11 This rule also accords with the practice of the American Supreme Court: U.S. v. Delaware & Hudson Co. 12; U.S. v. Witkovich. 13
The necessity for the Courts to exercise self-restraint in the exercise of their constitutional jurisdiction to review legislation is due in part to the inherent limitations of the judicial process. When a court is presented with the question of the constitutionality of a legislative enactment, it can do only one of two things; it can find it to be constitutional, or it can strike it down as unconstitutional. If it finds it to be constitutional, it merely gives to an already valid law a judicial imprimatur. If it declares it to be unconstitutional, it holds it to be a nullity; it leaves a void where what purported to be a statutory provision was; but it cannot fill that void. It unmakes what was put forth as a law by the legislature but, unlike the legislature, it cannot enact a law in its place. It is clear that if this power, which may seem abrogative and quasi-legislative, were used indiscriminately it would tend to upset the structure of government: Rescue Army v. Municipal Court. 14 The desirability that the Courts, the Legislature, and the Executive should be punctilious in observing their constitutional functions has been referred to as follows by the Supreme Court in In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940 15:”The People, by the Constitution, have provided for the setting-up of three great Departments of Statethe Oireachtas, the Executive, and the Judiciaryand it is essential for the harmonious working of the machinery of State that each Department should confine itself to its own constitutional functions. If the Oireachtas enacts a law within the scope of its legal and constitutional powers, it is for the Courts to construe and apply such law. Any criticism by the Courts of the manner in which the Oireachtas exercises the discretion and powers vested in it would be as much open to objection as would any suggestion, in either House of the Oireachtas, that a decision of a Court, within the scope of its authority, was not in accordance with law.” Because of the constitutional proprieties involved in the judicial review of legislation and the inherent limitations of the judicial process, the rule has been evolved that a court should not enter upon a question of constitutionality unless it is necessary for the determination of the case before it. A clear text-book statement of the rule is given in Cooley’s Constitutional Limitations (8th ed., 1927) Vol. I, pp. 338-9:”In any case where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record also presents some other and clear ground upon which the Court may rest its judgment, and thereby render the constitutional questions immaterial to the case, that course will be adopted and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it and when consequently a decision upon such question will be unavoidable.” Examples of the application of this principle are to be found in Siler v. Louisville and Nashville Railroad Co. 16; Spector Motor Co. v. McLaughlin 17; Peters v. Hobby 18; see also Willoughby’s Constitutional Law of the United States (2nd ed. 1929) Vol. I, pp. 25-7.
Turning to the present case, I find that any conclusion I might reach as to the constitutionality of the Court of Criminal Appeal as a court of appeal from the High Court, exercising its criminal jurisdiction in indictable crime, would in no way affect my decision.
Having held that the warrant of the Court of Criminal Appeal is bad on legal (as distinct from constitutional) grounds, I would be indulging in a superfluous exercise and acting in breach of the principle I have cited if I entered on the constitutional question. It must await another case. I express no opinion on it.
IV. The warrant of the Central Criminal Court is bad in that it is based on an order which imposes a sentence of penal servitude, the length of which may be determined by persons not authorised by the Constitution to do so.
Having held that the order and warrant of the Court of Criminal Appeal are bad, I must now consider the question of the validity of the order and warrant of the Central Criminal Court for, unless the latter warrant is good, the prisoner must be released. Counsel for the prisoner says that that warrant is bad because the sentence of the court, on which it is founded, is itself bad.
It is conceded that the sentence is unusual, but counsel for the Governor and the Attorney General submits that it does not infringe the Constitution and that in any event it is a good sentence of at least 36 months penal servitude, and that if the prisoner is detained wrongfully for longer than 36 months, he can then successfully assert his right to be released by applying for habeas corpus or by bringing a declaratory action. It seems clear to me that the objections to this sentence cannot be disposed of by saying that it is valid at any rate for 36 months. To construe it in that way would do violence to the clear intention of the learned trial judge as expressed in the form of the sentence. The primary punishment is one of seven years penal servitude, but there is attached to it the proviso that the last four years penal servitude are to be suspended if at the end of 36 months the prisoner has observed prison discipline and if he enters into the required bond. Thus it cannot be considered to be good as a sentence of seven years penal servitude simpliciter for, if the learned judge had intended it to be so, he would not have attached the relieving proviso. It could not be said that it operates as a sentence of seven years penal servitude unless it could be shown that the prisoner had put himself outside the benefit of the proviso. Likewise it could not be said that it is good as a sentence of 36 months unless at the end of the 36 months it could be shown that he has become entitled to the benefit of the proviso. Thus, neither the sentence of seven years nor the sentence of 36 months can stand unless the proviso is held to be good.
The operation of the proviso, and consequently the precise determination of the term of penal servitude that must be served
by the prisoner, will require a decision as to whether or not the prisoner has observed prison discipline during the first 36 months of the sentence. If this decision is unfavourable to the prisoner, it will have the effect of condemning him to serve a further four years penal servitude. Counsel for the prisoner seeks to have the whole sentence condemned as unconstitutional because its operation hangs on a decision to be made by a person or persons who have no judicial standing.
Prison discipline is mainly regulated by the Rules for the Government of Prisons, 1947 (S.R. & O. No. 320 of 1947). Rule 68, sub-r. 1, lays down that a prisoner shall be guilty of a breach of prison discipline if he:”(1) Disobeys any order of the Governor or of any other officer or any prison regulation. (2) Treats with disrespect any officer or servant of the prison or any visitor, or any person employed in connection with the prison. (3) Is idle, careless, or negligent at work, or refuses to work. (4) Is absent without leave from divine service, or prayers, or school instruction. (5) Behaves irreverently at divine service or prayers. (6) Swears, curses, or uses any abusive, insolent, threatening or other improper language. (7) Is indecent in language, act, or gesture. (8) Commits a common assault upon another prisoner or any other person. (9) Converses or holds intercourse with another prisoner without authority. (10) Sings, whistles, or makes any unnecessary noise, or gives any unnecessary trouble. (11) Leaves his cell or other appointed location, or his place of work, without permission. (12) In any way disfigures or damages any part of the prison, or any article to which he may have access. (13) Commits any nuisance. (14) Has in his cell or possession any unauthorised article, or attempts to obtain such article. (15) Gives to or receives from any person any unauthorised article whatever. (16) In any other way offends against good order and discipline. (17) Attempts to do any of the foregoing things.”
It will be seen that the matters laid down as breaches of prison discipline are, in many instances, stated in very vague and general terms. Opinions might greatly differ, for example, as to what conduct would amount to treating with disrespect any officer or servant of the prison, or giving any unnecessary trouble, or committing any nuisance, or offending in any other way against good order and discipline. The application of prison discipline will obviously depend to a large degree on the subjective standards and the flexibility, or inflexibility, of the person charged with upholding prison discipline. Normally, this will be the governor, but if he is absent, it will be the deputy governor, and if he is absent, the chief warder or senior qualified officer (Rule 115). The prisoner has so far been in two prisons since his sentence commenced and before 36 months of his sentence are up; his observance of prison discipline may have been judged not alone by two Governors but by a series of prison officers, the adverse decision of any of whom would have the effect of condemning him to serve four extra years of penal servitude.
Another feature of the matters specified in Rule 68, sub-r. 1, of the prison rules as breaches of prison discipline is the absence from many of them of mens rea. It requires no direction of a guilty mind to the act for a prisoner to be found to have infringed prison discipline by being negligent at work, conversing with another prisoner without authority, making unnecessary noise, etc. The absoluteness of the prohibitions and the generality of their descriptions are such that it would not be beyond the capacity of a vindictive fellow-prisoner to contrive that the prisoner in this case should be found guilty of a breach of discipline. It may, of course, be replied to that that outside of prison one runs comparable hazards at the hands of vindictive neighbours but, if so, one does not suffer penal servitude as a result unless by the decision of a court of law of competent jurisdiction.
Effect cannot be given to the sentence imposed by the learned trial judge without the operation of the proviso to it; and the operation of the proviso cannot take place without a decision by a Governor or other prison officer as to whether or not the prisoner has observed prison discipline. If at this moment one had to reply to a query as to what sentence the prisoner will have to serve, one would say that it will be three years if he has not been found guilty of a breach of prison discipline, but that it will be seven years if he has been so found guilty. The learned judge in imposing this sentence of penal servitude fixed it at a maximum of seven years and a minimum of three years, but by necessary implication left it to prison officers to say whether the prisoner will have to serve the minimum or maximum period. Counsel for the prisoner contends that this delegation is impermissible under the Constitution and that in consequence the sentence is bad, either as a sentence of three years or as a sentence of seven years penal servitude. I accept this submission. Where a range of penalties is prescribed by law for a particular offencein the present case by reference to a maximum penaltythe selection of the penalty to be imposed cannot be committed to any person or body not being a judge or a court or tribunal set up under the Constitution. The selection and imposition of the penalty are integral parts of the trial of an offence, and when the Constitution in Article 38 spells out the only courts or tribunals that may try offences, it thereby limits to these courts and tribunals the right to select (where there is a selection) and to impose the penalty. Where the trial is by a judge sitting with a jury, it is for the judge alone to select and impose the penalty; and, if that selection is delegated to or shared with any person who is not authorised by the Constitution to try offences, there is a wrongful invasion of what is exclusively a judicial domain.
I am unable to distinguish this case in principle from Deaton v.The Attorney General and the Revenue Commissioners. 19 There the Supreme Court declared unconstitutional a statutory provision which enabled the Revenue Commissioners to choose which of two penalties the court should impose upon conviction for certain offences. Giving the judgment of the Supreme Court, Ó Dálaigh C.J. said, at pp. 182-3 of the report:”The Legislature does not prescribe the penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the Courts. If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment. But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular case, then a choice or selection of penalty falls to be made. At that point the matter has passed from the legislative domain. Traditionally, as I have said, this choice has lain with the Courts. Where the Legislature has prescribed a range of penalties the individual citizen who has committed an offence is safeguarded from the Executive’s displeasure by the choice of penalty being in the determination of an independent judge. The individual citizen needs the safeguard of the Courts in the assessment of punishment as much as on his trial for the offence. The degree of punishment which a particular citizen is to undergo for an offence is a matter vitally affecting his liberty; and it is inconceivable to my mind that a Constitution which is broadly based on the doctrine of the separation of powersand in this the Constitution of Saorstát Éireann and the Constitution of Ireland are at onecould have intended to place in the hands of the Executive the power to select the punishment to be undergone by citizens. It would not be too strong to characterise such a system of government as one of arbitrary power . . . In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive . . .”
In the present case, since the sentence of the Central Criminal Court by necessary implication leaves to officials of the Executive the final selection of the sentence of penal servitude that the prisoner must serve, I must hold on the authority of Deaton’s Case 20 that it is bad. It follows that the warrant which seeks to give effect to it is also bad.
Since my conclusion is that neither warrant relied on by the Governor of Portlaoise Prison to justify the detention of the prisoner is good, I disallow the cause shown and make absolute the conditional order of habeas corpus.
Supreme Court
O’Dalaigh CJ
This appeal is taken by the Governor of Portlaoise Prison and by the Attorney General against an order of Mr. Justice Henchy dated 30th May, 1968, disallowing the cause shown, making absolute a conditional order of habeas corpus dated 12th December, 1967, made by Mr. Justice Kenny, and ordering that the prosecutor be forthwith released. The decision of this Court in The State (Browne) v. Feran 43 establishes that by virtue of Article 34, s. 4, sub-s. 3, of the Constitution an appeal lies from an order of the High Court making absolute a conditional order of habeas corpus.
This litigation has a history of unusual and curious twists. The matter began with the conviction of the prosecutor in the Central Criminal Court on the 9th March, 1967, on a charge of office-breaking and larceny contrary to s. 26 (1) of the Larceny Act, 1916; and the litigation which has followed arises from the sentence which the presiding judge, Mr. Justice Butler, pronounced. The court record sets out the sentence as follows:
“9th March, 1967Patrick WoodsTo be kept to penal servitude for a period of seven years but upon the completion of 36 months of such sentence order that the residue of such sentence be suspended provided the accused has obeyed prison discipline and enters into a bond himself in the sum of £500 upon the conditions that he will keep the peace and be of good behaviour towards all the People of Ireland for the residue of the sentence.”
The warrant of committal was in like terms, with verbal differences of no significance; but I should nevertheless cite it textually as its constitutionality was challenged in the habeas corpus proceedings which the prosecutor subsequently initiated. It reads:
“To be kept to penal servitude for a period of 7 years from to-day (9-3-67) but order that upon completion of 36 months of such sentence that the residue of such sentence be suspended if the accused obeys prison discipline and on the completion of such 36 months he enters into a bond himself in the sum of £500 upon the conditions that he will keep the peace and be of good behaviour towards all the People of Ireland for the residue of such sentence.”
The actual words used by the trial judge in pronouncing sentence were not brought to the attention of Mr. Justice Henchy in the High Court; however, they are of importance and it will be convenient to set them down here at the outset of this judgment. The actual words used were as follows:
“I impose a sentence of 7 years penal servitude. And I direct as follows:that if and when you have completed 36 months of that sentence, dating from to-day, if you have completed 36 months from to-day and have complied with prison discipline in obeying the prison rules that would, in the normal way, allow you leniency, I will then suspend the balance of your sentence, on your entering into a bond, in your own bail of £500, to keep the peace for the remaining four years of the sentence.”
The warrant of committal was addressed to the Governor of Mountjoy Prison and the prosecutor was duly imprisoned there, but he was transferred from Mountjoy Prison to Portlaoise Prison by order of the Minister for Justice, dated the 10th May, 1967. No question arises as to the validity of this transfer.
The prosecutor’s first step was to apply (by notice dated 11th May, 1967) to the Court of Criminal Appeal for leave to appeal against the trial judge’s refusal of a certificate for leave to appeal against conviction and sentence; the prosecutor had neglected to seek a certificate from the trial judge within due time but later he sought and obtained the necessary extension of time. Next, he applied to the Court of Criminal Appeal for a free transcript
but this was refused by that court on the 16th June, 1967. Thirdly, on the 12th December, 1967, he applied for and obtained from Mr. Justice Kenny the conditional order of habeas corpus which Mr. Justice Henchy was later to make absolute on the 30th May, 1968.
But in the interval a number of other events of importance took place. On 16th January, 1968, the prosecutor brought before the President of the High Court a motion to make absolute the conditional order of habeas corpus, notwithstanding the cause shown; but the President adjourned the hearing of the motion to the 12th February, 1968. The prosecutor appealed to this Court against the President’s order of adjournment and on the 2nd February the Court [ Ó Dálaigh C.J., Walsh and FitzGerald JJ.] ordered that appeal to stand adjourned pending a report being obtained from the President of his judgment. This was done, and the matter was relisted on 6th February, 1968. It then became clear that counsel for the prosecutor and the learned President had been at cross-purposes. The President appears to have thought that counsel for the prosecutor agreed that the President could not make absolute the conditional order while Mr. Justice Butler’s order stood, while counsel was quite clear that his submission to the President was in fact quite the contrary of this. The Court, therefore, adjourned generally the further hearing of the appeal in order to allow counsel an opportunity of having the motion to make absolute re-listed before the President for further hearing, and gave liberty to apply.
Next, by notice dated the 28th February, 1968, the prosecutor gave notice of his abandonment of his appeal to the Court of Criminal Appeal. By letter dated the 11th March, 1968, the assistant registrar of the Court of Criminal Appeal acknowledged receipt of the notice of abandonment and stated that the notice would be listed before that court on the 13th March, 1968. He added that, as he had been informed that the Attorney General might oppose the dismissal of the appeal on foot of the notice of abandonment, he was requesting the Governor of Portlaoise Prison to make arrangements for the prosecutor’s personal attendance, if he so wished, to move the dismissal in person. At the sitting of the Court of Criminal Appeal on the 13th March, 1968, the prosecutor was represented by junior counsel who submitted that, as notice of abandonment had been served by the prosecutor, there was no appeal before the court. Counsel for the Attorney General replied that the service of notice of abandonment did not dispose of the matter and he asked the court, as the sentence was unusual, to substitute a sentence of four years penal servitude simpliciter. The matter was allowed to stand over until the following day. Junior counsel for the prosecutor then sought a further adjournment in order that the prosecutor might have the assistance of senior counsel in arguing the matter. This was refused and the court, on being informed by counsel that he had no further submissions to make, ruled that notwithstanding the service of notice of abandonment of the appeal it had seisin of the appeal and jurisdiction to vary the sentence. The Court of Criminal Appeal thereupon substituted for the sentence imposed by Mr. Justice Butler a straightforward sentence of four years penal servitude, directing that it should run from that date. Counsel for the prosecutor declined that court’s invitation to seek a certificate of leave to appeal to the Supreme Court on the ground that the decision involved a point of law of public importanceunderstandably, perhaps, as the court had just refused an application for adjournment in order that his client could have the assistance of senior counsel in arguing the question.
The last and final turn in this tortuous path was an application by the prosecutor to add, to the grounds already relied upon in the habeas corpus matter, several additional grounds arising out of the making of the order of the Court of Criminal Appeal; in particular he challenged the jurisdiction of that court to vary the prosecutor’s sentence after service of notice of abandonment of appeal and, taking still broader ground, he challenged the constitutionality of the very existence of a court of criminal appeal.
In making absolute the conditional order of habeas corpus Mr. Justice Henchy, in the course of a very full and careful judgment, held (i) that the Court of Criminal Appeal had no jurisdiction to make the order which it made and, accordingly, that the warrant of that court relied upon as justifying the prosecutor’s detention was of no avail to the respondents; and (ii) that the warrant of the Central Criminal Court (Butler J.) was bad in that it is based on an order which imposes a sentence of penal servitude, the length of which may be determined by persons not authorised by the Constitution to do so.
The respondents’ first challenge is to Mr. Justice Henchy’s ruling that the Court of Criminal Appeal had no jurisdiction to make the order varying the sentence. The Court of Criminal Appeal is the creature of statute and it is a court of limited jurisdiction. The present Court of Criminal Appeal was established by s. 3 of the Courts (Establishment and Constitution) Act, 1961. Section 12, sub-s. 1, of the Courts (Supplemental Provisions) Act, 1961, made it a court of superior record, and provided that it shall have full power for the purposes of that Act and of the enactments which are applied by s. 48 of that Act to determine any questions necessary to be determined for the purpose of doing justice in the case before it. Sub-section 2 of the same section vested in that court all the jurisdiction which by virtue of any enactment which was applied by virtue of s. 48 was vested in, or capable of being exercised by, the old Court of Criminal Appealviz., the court established by the Courts of Justice Act, 1924. The relevant sections of the Act of 1924 are ss. 31 and 34 and they are in these terms:
“31.A person convicted on indictment before the Central Criminal Court or before any court of the High Court Circuit may appeal under this Act to the Court of Criminal Appeal under the following conditions:
(i) if the appellant obtains a certificate from the judge who tried him that the case is a fit case for appeal;
(ii) in case of refusal of such certificate if the Court of Criminal Appeal on appeal from such refusal grant leave to appeal.”
“34.The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court.”
The prosecutor’s case fell under paragraph (ii) of s. 31; and it may be emphasised that the powers conferred on the Court of Criminal Appeal by s. 34 of the Act of 1924 are exercisable in respect of “the case before the court”. The position would, doubtless, be the same even if this express provision were absent. Section 36 of the Act of 1924 left the question of pleading, practice and procedure generally in all criminal cases before the Court of Criminal Appeal to be determined by rules of court, and s. 14 of the Courts (Supplemental Provisions) Act, 1961, repeated this provision. The current rules are to be found in Order 86 of the Rules of the Superior Courts, 1962, and the provision for abandonment of appeal, which is contained in r. 24, is as follows:
“24. (1) An appellant at any time after he has duly served notice of appeal or of application for leave to appeal or of application for enlargement of time may abandon his appeal or application by giving notice of abandonment thereof in the Form No. 20.
(2) When the Registrar receives a notice of abandonment of any appeal or application for leave to appeal he shall give notice thereof to all persons to whom he shall have given notice of the receipt by him of notice of such appeal or application for leave to appeal.”
In terms an appellant is authorised by the rule to abandon his appeal by giving notice thereof in the appropriate form (Form 20, Appendix U). This notice, addressed to the registrar of the court, says:”I . . . do hereby give you notice that I do not intend further to prosecute my appeal, and that I hereby abandon all further proceedings in regard thereto as from the date hereof.”The prosecutor’s notice of abandonment was in the prescribed form and, as already stated, was dated the 28th February, 1968. The prosecutor had appealed against conviction and sentence and by his notice he abandoned both appeals. The requirement of r. 24 (2)that the registrar, on receipt of notice of abandonment, shall give notice thereof to all persons to whom he shall have given notice of the receipt by him of the application for leave to appeal is explained by reference to r. 7 of the order. It is there provided that notice shall be given to:”(a) the Chief State Solicitor; (b) the proper officer of the court of trial; (c) the Commissioner of the Garda SÃochána; and also, if the appellant is in prison, or has been released on bail (d) the Governor of such prison, and (e) the Secretary of the Department of Justice; provided that the Registrar shall not be required to give such notice to the Governor of a prison if the appellant’s notice of appeal, or notice of application for leave to appeal, shall have been forwarded to the Registrar by such Governor.” These persons have to be told the appeal is abandoned for the good reason that they are not further concerned.
The rule of court (r. 24) taken by itself is quite clear: it is an authority to an appellant to abandon his appeal. To do so all he is required to do is to give notice on the prescribed form to the registrar. The form indicates that the abandonment is effective from the date of the notice:”. . . I hereby abandon all further proceedings in regard thereto as from the date hereof.”The rule requires that notice be given in the prescribed form, i.e.to the registrar of the Court of Criminal Appeal, and, on receipt by the registrar of the notice, the appeal is abandoned with effect as from the date it bears. The Act authorises a person to appeal against a refusal to grant him leave to appeal; and the rule authorises him to abandon his appeal by giving notice of abandonment to the registrar of the Court of Criminal Appeal with effect, on receipt of the notice of abandonment by the registrar, retrospectively to the date of the notice. In the face of this very clear provision I cannot see how any ground in law can be found for the view that the Court of Criminal Appeal retained seisin of the prosecutor’s appeal.
It is true that the Criminal Appeal Rules, 1924, contained in r. 21 these additional words “and upon such notice being given the appeal shall be deemed to have been dismissed by the Court of Appeal.” These words were omitted when new rules were made in 1956; and this, it is believed, was done in deference to the injunction in Article 34, s. 1, of the Constitution that, save in such special and limited cases as may be prescribed by law, justice shall be administered in public. The present rule follows the rules of 1956. I have no desire to question that notices of abandonment, in deference to Article 34, are properly listed to be noted publicly by the court; but I cannot see that the force and effect of Order 86, r. 24, of the rules of 1962 are in any way modified or weakened by the absence of the words which found place in the rules of 1924. As was well said by Mr. Justice Henchy in the course of his judgment: “The jurisdiction of the Court of Criminal Appeal . . . is confined to cases in which the convicted person invokes the jurisdiction of that court.”
I conclude, with Mr. Justice Henchy, that the Court of Criminal Appeal had no application for leave to appeal before it when it sat on the 13th and 14th March, 1968, and that its order on the latter date purporting to vary the sentence imposed by Mr. Justice Butler was a nullity.
With the re-establishment of the judgment of Mr. Justice Butler, not a great deal more requires to be added. The attention of Mr. Justice Henchy was not called to the actual words used by Mr. Justice Butler in passing sentence; he quite clearly reserved to himself the question whether the prosecutor had complied with prison discipline in obeying prison rules during the initial 36 months of the sentence. The submission that the trial judge’s sentence left it in the judgment of the prison authorities to determine the length of the prosecutor’s sentence was therefore wholly misconceived; and it was on the basis of that misconceived submission that Mr. Justice Henchy ruled that the sentence was unconstitutional. As we now see, such was not the case. The modification of sentence held out by Mr. Justice Butler to the prosecutor, if he complied with prison discipline for three years, was one which was to be executed entirely within the judicial domain. The point need not be further laboured. If the warrant had been drawn with greater particularity, the possibility of this erroneous submission being made could never have arisen.
Where a prisoner has been erroneously released in the High Court it is the duty of this Court on appeal to ensure that the prisoner is re-arrested to serve the unexpired period of his lawful sentence. The Court at the conclusion of the argument, having allowed the appeal, immediately issued an order for this purpose and directed that the prosecutor be delivered into the custody of the Governor of Mountjoy Prison in accordance with the sentence imposed by Mr. Justice Butler, who has since procured the issue of a warrant drawn in explicit compliance with the terms of the sentence that he pronounced.
WALSH J. :
I agree.
BUDD J. :
I agree.
TEEVAN J. :
I agree.