Sentencing Misc

Cases

The People v. B. (T.)

 

, Court of Criminal Appeal, 6 November 1996

Keane J.
6th November 1996

The accused pleaded guilty in the Circuit Court to 16 counts of indcecent assault and 16 counts of sexual assault against his daughter, and two counts of sexual assault against an 18 year old girl. The learned Circuit Court Judge imposed sentences of 4 years imprisonment in respect of two of the counts of indecent assault against his daughter and ordered the sentences to run consecutively. The accused applied for leave to appeal on the ground that the sentences were excessively severe, which application was refused. He now appeals to this Court.
The facts can be shortly stated. The accused is a farm labourer and the complainant is his youngest daughter. Her mother died in January, 1989, after suffering from multiple sclerosis for approximately 10 years. Towards the end of her mother’s life, when his daughter was approximately 91/2 years old, the accused began sexually abusing her. This continued on a regular basis until August, 1994, at which stage the complainant was 16 and reported the accused’s behaviour to the gardaí. The complainant in her statement to the gardaí said that the accused on a number of occasions physically attacked her or threatened so to do if she did not co-operate with him in the sexual activity. The complainant also made it clear in her statement that the accused on these occasions tried to have anal, vaginal or oral intercourse with her but that she managed to resist him before he actually penetrated her. This account is not disputed by the accused in his statement to the gardaí, although he contents himself with saying that:
“I never had full sexual intercourse with her. I never penetrated her.”
The counts in relation to the other girl arise out of assaults that took place in 1994. On an evening between the 25th May and 14th June of that year, the accused gave a lift in his car to the complainant and asked her to show him the way to a local nursery. He availed of this pretext to drive her to a lonely place where he sexually assaulted her. The second assault took place in late July or early August when the accused again gave the complainant a lift in his car, drove it to a lonely area and sexually assaulted her.
At the trial a garda sergeant gave evidence that the accused, who was then aged 45 and unemployed, had never come to the notice of the gardaí before that, but had a previous conviction for burglary in 1982. He agreed that the accused was co-operative from the outset and seemed to be relieved that everything had now come to light. A social worker gave evidence that the complainant had repeated her leaving certificate last year and passed it and that she was now working in a local restaurant. She said that she was concerned about the complainant at the moment and that she thought she would always have difficulty in trusting people. She said that she hoped the complainant would be able to develop a close relationship, but that she was going to need support for a long time. She did not, however, blame herself in any way for the episodes and, in the view of the social worker, that was a hopeful sign.
It was said on behalf of the accused that he had been in regular employment until the time that his wife became ill with multiple sclerosis and that at that stage he gave up work to look after her. He had developed a very bad problem with alcohol over the years and the behaviour to which he had pleaded guilty was invariably associated with heavy drinking. A doctor who gave evidence on his behalf said that he had a combination of alcoholism and a manic depressive condition and was also a person of low IQ. The accused also gave evidence and expressed his remorse for what had happened.
In imposing sentence, the learned trial judge referred to the fact that the maximum sentence for indecent assault (the subject matter of the earlier counts) was 10 years, but for sexual assault (the subject matter of the later counts) was 5 years. He then imposed the sentences to which reference has been made and said that he was taking into account the other charges to which the accused had pleaded guilty.
Mr. O’Kelly on behalf of the accused submitted that, as the accused had pleaded guilty to all the charges, this should have been reflected in the sentence imposed. However, the effect of the imposition of consecutive sentences was that the accused had been subjected to a more severe sentence than the maximum permitted under the legislation now in force in respect of this particular offence. He submitted that, while the prosecutor, in view of the contents of the statements of the complainant, and the admissions of the accused, could have preferred charges of aggravated sexual assault and attempted rape, he had elected to proceed in respect of the later offences with the lesser charge of sexual assault. Since the learned trial judge had acknowledged that he could not take into account offences with which the accused had not been charged, it was anomalous that, as a result of the imposition of the consecutive sentences, he was receiving a more severe sentence than the charge of sexual assault alone would have attracted.
Mr. O’Kelly further submitted that the sentences imposed did not give sufficient weight to the tragic background to the case, the genuine remorse displayed by the accused and the fact that, due to the complainant’s courage in resisting as best she could the assaults, full sexual intercourse had never taken place.
Before considering these submissions, it should be pointed out that, while the trial judge was strongly of the view that the provision in the Criminal Law (Rape) (Amendment) Act, 1990, of a maximum sentence of 5 years imprisonment for the newly created crime of “sexual assault” was seriously inadequate, the difficulty (if difficulty there was) in the present case, as in any such case, has not been created by the legislature. It was a matter exclusively for the prosecutor to decide whether charges of aggravated sexual assault and attempted rape (which would have necessitated a trial in the Central Criminal Court) should have been preferred against the accused. Since the prosecutor elected to charge the accused solely with indecent assault and sexual assault, the trial judge quite correctly approached the imposition of sentence without regard to the more serious charges which the accused would have faced had a different decision been taken.
There can also be no doubt that in this case, having regard to the gravity of the offences, the maximum sentence of 5 years in respect of each count would have been appropriate were it not for the plea of guilty, and that the reduction in the sentence to 4 years gave sufficient weight to that plea. The essential issue arising on the appeal is as to whether the trial judge erred in principle in imposing consecutive sentences.
The jurisdiction of the courts to impose concurrent or consecutive sentences where a person has been convicted of more than one offence at the trial is, in general, a non-statutory one, although it has been regulated by statute in particular contexts: see the Criminal Law (Ireland) Act, 1828, Criminal Justice Act, 1951, s. 5 and Criminal Justice Act, 1984, s. 11, sub-section 1. While we were not referred to any authorities, it seems clear that the general principle is that concurrent sentences should be imposed for offences arising out of one incident or transaction, although there are exceptional cases where the sentencing tribunal may depart from the usual practice. ( See R. v. Lawrence (1989) 11 Cr. App. R. (S.) 580).
In England the courts have also applied what has come to be called”the totality principle” which is summarised as follows by one learned commentator:
“The courts have . . . evolved a principle which Thomas has called the totality principle, which requires a court to consider the total sentence in relation to the totality of the offending and in relation to sentence levels for other crimes.” (Andrew Ashworth, Sentencing and Criminal Justice, 2nd Ed. p. 209).
It would thus be inappropriate, for example, to impose a series of prison sentences in respect of a number of motoring offences to run consecutively which would have the consequence of subjecting the offender to a disproportionately severe sentence and one that might be more severe than the court would impose for manslaughter or rape. In such a case, it has been suggested that the sentencing tribunal should step back, so to speak, and consider the totality of the sentences and whether any reduction is called for in the circumstances.
That approach appears to have been endorsed, by implication at least, by McCarthy J. delivering the judgment of this Court in The People (D.P.P.) v. Healy [1990] 1 I.R. 388. There the Court was concerned with s. 11, sub-s. 1 of the Criminal Justice Act, 1984, which provides that any sentence of imprisonment passed on a person for an offence committed while he was on bail shall be consecutive on any sentence passed on him for a previous offence or, if he is sentenced in respect of two or more previous offences, on the sentence last due to expire. Having referred to the submissions of counsel in which reference was made to the “totality principle”, the judgment went on:
“The court, therefore, takes the opportunity of stating that in the application of s. 11 of the Criminal Justice Act, 1984, the sentencing court should determine the sentence appropriate to the offence or offences on the indictment to which the section applies, without regard to the fact that it must be a consecutive sentence under the provisions of s. 11 and direct that such a sentence shall be consecutive on any sentence for a previous offence. This is not to say that, in a proper case, the sentencing court, in the case of grave offences, should not adjust the sentence downwards where not to do so would impose a manifestly unjust punishment on the accused.”
In the present case, it is perfectly clear that the offences in respect of which the accused pleaded guilty did not arise out of the same incident or transaction, but, on the contrary, were committed at intervals over a lengthy period of years. It was, accordingly, a case in which it was clearly within the discretion of the trial judge to impose consecutive sentences if he thought that appropriate. Nor can it be said, in the view of the Court, that, applying the “totality principle”, the resulting sentence of 8 years could be regarded as unjust, having regard to the gravity of the offences and the serious consequences for the complainant.
The Court considers that there was no error in principle on the part of the trial judge which would justify this Court in interfering and, accordingly, the application for leave to appeal will be dismissed.

 

McCabe -v- Ireland & Ors

 

[2014] IEHC 435 (30 September 2014)
U

JUDGMENT of Mr. Justice Gerard Hogan delivered the 30th day of September, 2014
1. Where an accused receives a suspended sentence from the Circuit Court on appeal from the District Court and that sentence is later re-activated following a conviction for a subsequent offence, is he or she constitutionally entitled to appeal against the decision to re­ activate that sentence? This is essentially the issue which is presented in these proceedings in which the plaintiff has challenged the constitutionality of key portions of s. 99 of the Criminal Justice Act 2006 (as amended) (“the 2006 Act”).

2. The plaintiff in these proceedings was originally convicted by the District Court on 24th June, 2013, of the offence of driving a motorcycle without insurance. He received a five months prison sentence in the District Court. Mr. McCabe appealed that sentence to the Circuit Court. On 29th October, 2013, the sentence was increased to six months, but, critically, it was suspended in its entirety for two years. Having regard to the scheme posited by s.99 of the 2006 Act it is accepted that the Circuit Court is now the first court for this purpose, i.e., it was the Circuit Court (albeit sitting in its appellate capacity when hearing an appeal from the District Court) which imposed the suspended sentence.

3. The plaintiff was, however, subsequently convicted in the District Court on 26th May, 2014, of an offence under s. 6(1) of the Criminal Justice (Public Order) Act 1994. That Court then remanded the applicant back to the Circuit Court in accordance with s. 99(9) of the 2006 Act. On the following day the Circuit Court then revoked the suspended sentence with immediate effect, so that the applicant commenced to serve his prison sentence of six months in relation to the original no insurance offence. It is pursuant to this sentence that the applicant is now in custody. Sentencing on the second charge has now been adjourned by the District Court pending the outcome of this and associated legal challenges.

4. The plaintiff originally sought to challenge the legality of his detention on a range of non-constitutional grounds in Article 40.4.2 proceedings. I rejected that challenge in a judgment delivered on 3rd June, 2014: see McCabe v. Governor of Mountjoy Prison [2014] IEHC 309. While there was some debate as to whether the plaintiffs constitutional challenge should be heard in those proceedings or whether it might not be better to have separate plenary proceedings with pleadings, it was ultimately agreed that the plaintiff should be at liberty on bail in the Article 40.4.2 proceedings pending the outcome of this constitutional challenge in these separate plenary proceedings.

5. As I observed in the first judgment, the question of the re-activation of suspended sentences in the manner envisaged by s. 99 of the 2006 Act has not been without its difficulties. The Oireachtas has indeed intended to address some of these problems of interpretation and application by two further amendments of the 2006 Act, namely, s. 60(1)(a) of the Criminal Justice Act 2007 (“the 2007 Act”) and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009 (“the 2009 Act”).

6. The scheme envisaged by s. 99 of the 2006 Act is clear enough. Section 99(9)(as amended by s. 60(a) of the 2007 Act) envisages that where an accused has been “convicted of an offence” for which he has received a suspended sentence and he subsequently commits a further offence during the currency of that suspended sentence, the court (which I shall term for ease of reference “the second court”) before which proceedings for the second offence are brought “shall before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order”.

7. It should be noted that, as originally enacted, s. 99(10) provided that the second court should impose sentence prior to sending the matter back to the original court for consideration in relation to the suspended sentence. Following the change effected by the 2007 Act, the second court is now required to remit the matter to the first court (i.e., the court which originally imposed the suspended sentence) prior to imposing sentence. Section 99(10) provides that the court to which the accused has been remanded shall revoke the suspension of the sentence “unless it considers that the revocation of that order would be unjust in all the circumstances of the case.”

8. Section 99(12) further provides that:

“Where an order under subsection 1 is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction or, or sentence imposed on, a person for an offence by the court that revoked the order.”
9. The dilemma which was presented for the plaintiff was that as the suspended sentence in his case was imposed by the Circuit Court, the decision to re-activate that sentence was taken by that Court. The difficulty, however, is that in summary prosecutions, the decision of the Circuit Court on appeal is final and unappealable. There is, of course, a statutory right of appeal from the Circuit Court to the Court of Criminal Appeal, but this is in respect of prosecutions on indictment only: see s. 63 of the Courts of Justice Act 1924 and s. 31 of the Criminal Procedure Act 2010.
10. Against the background, it is agreed that the first question, therefore, which must be considered is whether the Constitution requires the existence of a right of appeal against the re-activation of a suspended sentence by the Circuit Court when it is agreed that such an appeal would lie had but the suspended sentence been imposed in the first instance by the District Court.
Does the Constitution require the existence of a right of appeal in these circumstances?
11. The plaintiff advances two fundamental arguments in support of his contention that the Constitution requires the existence of a right of appeal. First, he says that he has such a right by virtue of Article 34.3.4 of the Constitution which provides:

“The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law.”
12. Second, he argues that a failure to provide a right of appeal against the re-activation of the suspended sentence when that suspended sentence was itself imposed by the Circuit Court on appeal when a right of appeal against the re-activation of the sentence is provided when the suspended sentence was originally imposed by the District Court would be fundamentally arbitrary and contrary to the equality guarantee in Article 40.1.
13. I propose now to deal with these arguments in reverse order.
A right of appeal and equality before the law
14. It is clear that, so far as the plaintiff is concerned, the fact that the suspended sentence was imposed by the Circuit Court rather than the District Court is a purely accidental factor which should be immaterial in any consideration of whether the decision to re-activate that sentence should itself be capable of being appealed. If, then, the plaintiff enjoys no right of appeal against the re-activation of the sentence, it might be asked why he should be placed at a disadvantage by reason of the fact that he was obliged in the first place to appeal to the Circuit Court in order to ensure that the sentence was actually suspended? If, of course, that suspended sentence had been imposed by the District Court in the first instance, then, upon re-activation of that sentence by the District Court, that decision (i.e., the decision to re­ activate) could in turn have been appealed to the Circuit Court.

15. It must also be recalled that the policy expressed by the Oireachtas in s. 99(12) is that the re-activation of every suspended sentence should be capable of being appealed to a higher court. In these circumstances, it is not possible to discern any possible justification for the radically different treatment of persons whose suspended sentences for minor offences have been re-activated by the Circuit Court as distinct from the District Court. The equal treatment of similarly situated persons within the criminal justice system is at the heart of the concept of equality before the law which, as the language of that provision makes clear, is one of the fundamental objectives of Article 40.1: see, e.g., Cox v. Ireland [1992] 2 I.R. 305, SM v. Ireland (No.2) [2007] IEHC 280, [2007] 4 IR 369, BG v. Ireland (No.2) [2011] IEHC 445, [2011] 3 IR 748 and Byrne v. Director of Oberstown School [2013] IEHC 562, [2014] 1 I.L.R.M. 346. This is especially so given that the fundamentally different treatment with regard to sentencing which would then obtain would so greatly impact on the core constitutional right to liberty under Article 40.4.1.

16. In this context it must also be stressed that s. 99(10) does not provide for the automatic re-activation of a particular sentence, since it recognises that there may be circumstances where the re-activation of a suspended sentence might be unjust. This is precisely why the right of appeal provided for by s. 99(12) in respect of the re-activation of a sentence is of such vital importance.

17. In these circumstances, the denial of the right of appeal to one category of litigant simply because of the essentially accidental fact that the suspended sentence which has now been re-activated was imposed on appeal by the Circuit Court rather than at first instance by the District Court has the inherent capacity to work a considerable injustice and unfairness. I say “essentially accidental” advisedly, because the question of whether an accused has the right of appeal against the re-activation of a sentence should not depend on whether the original sentence was imposed at first instance or whether it was imposed following an appeal to the Circuit Court.

18. This conclusion is, moreover, re-inforced by a consideration of the Supreme Court’s judgment in The People v. Foley [2014] IESC 2. In that case the accused had originally received a sentence of 8 years’ imprisonment, the entirety of which was suspended by the trial judge. Following an undue leniency appeal by the Director of Public Prosecutions to the Court of Criminal Appeal, that Court varied the sentence by suspending only five of the eight years. When the accused committed further offences in breach of the conditions attaching to the suspended sentence, the issue arose as to what the appropriate court which should determine the re-activation issue actually was: was it the Circuit Court or was it the Court of Criminal Appeal?

19. The Supreme Court held that the re-activation issue should be determined by the Court of Criminal Appeal, since it was that Court which had effectively set aside the decision of the Circuit Court and replaced it with what Denham C.J. described as a “new sentence.” It followed that a right of appeal existed from the re-activation decision of that Court to the Supreme Court, albeit under the limited conditions contained in s. 29 of the Courts of Justice Act 1924. Critically, however, the Supreme Court rejected the argument that this constituted an unfair discrimination as between different categories of appeals, whether appeals against severity or appeals against undue leniency. As Denham C.J. observed:

“In fact…convicted persons in both such appeals, namely, those under s. 2 of the Criminal Procedure Act 1993 [undue leniency] and s. 3 of the Criminal Procedure Act 1993 [severity] are subject to a similar power of the [Court of Criminal Appeal] to quash the sentence of the trial judge and to impose a new sentence. Thus, I would dismiss this ground of appeal [unfair discrimination] also.”
20. The clear implication from this passage, of course, is that had matters been otherwise, Article 40.1 would have been breached.
Conclusions on the Article 40.1 issue
21. Given that in the present case the significantly differing treatment of otherwise similarly situated accused so far rights of appeal are concerned is incapable of objective justification- and, let it be recalled, no such justification has really been advanced – the conclusion that such a state of affairs plainly offends the guarantee of equality before the law in Article 40.1 is, accordingly, inescapable. We can consider presently the implications of that particular conclusion.
Whether Article 34.3.4 requires the existence of a right of appeal?
22. As the Circuit Court is a court of local and limited jurisdiction, it is plain that Article 34.3.4 is, in principle, at least applicable to a decision to re-activate a sentence. Counsel for the defendants, Mr. Barron S.C., argued that the decision to re-activate a suspended sentence was in this instance no more than the exercise of a statutory power which was ancillary to the pre-existing appellate jurisdiction. In effect, therefore, the argument was that this decision was simply part and parcel of the appellate jurisdiction which had already been exercised when Mr. McCabe persuaded the Circuit Court to suspend the sentence on appeal from the District Court.

23. While this argument was attractively put, I do not think that this, with respect, can be regarded as a realistic analysis of what actually occurred in the Circuit Court. Certainly, the decision to re-activate the sentence is treated by s. 99(10) as an autonomous, free standing exercise of a new jurisdiction, requiring the application for the first time of separate statutory tests, necessitated in turn by the presence of new facts which are themselves the basis on which this jurisdiction was to be exercised. Any other conclusion is, in any event, contra­ indicated by the very wording of s. 99(12) itself which creates a right of appeal from the decision to re-activate the suspended sentence. The language, structure and form of this sub­ section necessarily pre-supposes that the decision to re-activate is a decision taken at first instance, even if the court which exercised that re-activating jurisdiction was itself originally exercising an appellate jurisdiction when the decision to impose the suspended sentence first came before it. This is further underscored by the comments of Denham C.J. in Foley which strongly support the view that the re-activation of the suspended sentence pursuant to s. 99(10) represents a new exercise of a statutory jurisdiction.

24. Next, it was argued that there is in fact an appeal from the decision of the Circuit Court in that s. 16 of the Courts of Justice Act 1947 allows for a case to be stated by the Circuit Court to the Supreme Court. That section provides in material part as follows:

“A Circuit Judge, may, if an application in that behalf is made by any party to any matter…pending before him, refer, on such terms on such terms as to costs or otherwise as he thinks fit, any question of law arising in such matter to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgment or order in the matter pending the determination of such case stated.”
25. It will be seen that s. 16 of the 1947 Act provides for a case stated procedure and not for a right of appeal. The ultimate decision continues to rest with the judge who made the reference to the Supreme Court, namely, the Circuit Court judge. Section 16 cannot thus be regarded as an “appeal” within the meaning of Article 34.3.4, which necessarily implies that there will be an independent determination of the case by a higher court, even if the scope of any such appeal is itself subject to conditions imposed by law.
26. Turning now to the construction of Article 34.3.4 itself, is clear from the judgment of Finlay J. in The State (Hunt) v. O’Donovan [1975] I.R. 39 that the right of appeal envisaged by Article 34.3.4 is one which requires statutory vesture. It is equally clear from that judgment that Article 34.3.4 does not contemplate a universal right of appeal in all cases. As Finlay J. observed ([1975] I.R. 39, 48):

“I have no difficulty in interpreting [Article 34.3.4] as prohibiting the constitution of a court of local and limited jurisdiction from which there was no appeal at all; but there is a very large gap between that interpretation and one which excludes the right of the law to determine from which precise decision an appeal will lie.”
27. In Hunt the applicant had pleaded guilty to the commission of an indictable offence in the District Court and in accordance with the provisions of s. 13 of the Criminal Procedure Act 1967 he was sent forward to the Circuit Court for sentence. As the law then stood, there was no right of appeal against the imposition of a sentence by the Circuit Court following such a plea of guilty in the District Court, although, as Finlay J. pointed out, had the accused withdrawn the plea before the Circuit Court and was subsequently found guilty, he would have had a right of appeal against sentence in such circumstances. (The right of appeal against sentence was in fact subsequently restored by s. 1 of the Criminal Procedure (Amendment) Act 1973).
28. In the light of his finding that Article 34.4.3 did not confer a universal right of appeal, Finlay J. concluded that the legislation was not unconstitutional by reason of an incompatibility with Article 34.3.4. Finlay J. also went to dismiss the argument that the 1967 Act thereby violated Article 40.1 ([1975] I.R. 35 at 50-51):

“A person can never be dealt with under that section unless he so wishes. There is no moral or legal duty on a person, when charged with an indictable offence before the District Court, to signify his desire to plead guilty to that charge. Unless he does so, the provisions of s. 13 of the Act of 1967 never come into operation. Even after he has been sent forward by the District Court on a plea of guilty (if he makes one), the accused having been sentenced by the Circuit Court must be asked if he wishes to withdraw that plea; if he does withdraw his plea he is indicted and to that indictment he may plead guilty or not guilty and, if sentenced, he has a statutory right of appeal against that sentence. However, to take a hypothetical case, each of two persons might be charged with the same type of crime but one of them might be sent forward for sentence on his plea of guilty which does not withdraw while the other might be convicted, or plead guilty on indictment; in such circumstances it is undoubtedly true that one had the right of appeal against severity of sentence while the other has not that right. I must ask myself whether this result, on the principles laid down in the cases to which I have referred, constitutes an invidious discrimination or a failure to protect adequately the rights of the individual.
The person who has been sent forward for sentence on his plea has the opportunity to withdraw that plea up to the very last moment; in addition such person is sentenced, after due submission in evidence, by a constitutional court with an independent judge subject to legal maximum standards as to the penalty he may impose. In these circumstances I do not consider that these provisions are repugnant to either s. 1 of Article 40 or s. 3 of that Article of the Constitution.

It is important to note that the choice to which I have referred is not an illusory one. Practitioners are well accustomed to using an unequivocal admission of an offence as a plea in leniency, and it often succeeds. Furthermore, there is a brevity in speed in the procedure under s. 13(2)(b) of the Act of 1967 which may constitute an advantage to an accused person. Therefore, I refuse these applications.”

29. This passage invites a number of comments. First, one might respectfully doubt whether this analysis of the proper scope of Article 40.1 would be followed today. In the early case-law dealing with Article 40.1 the term “invidious discrimination” seems to have been borrowed from the US case-law dealing with the equal protection clause of the 14th Amendment. The US jurisprudence had been developed in a context where the US Supreme Court frequently encountered legislation which was “invidiously” discriminatory in this sense in that there was legislative discrimination on the basis of race or colour. One would be hard pressed to identify any legislation enacted by the Oireachtas which was “invidious” in this particular sense. The scope of Article 40.1 is, however, far broader than this and it is perhaps for this reason that the Supreme Court has subsequently observed that the use of this term (“invidious discrimination”) “in discussing Article 40.1 is more likely to mislead than to help”: see Murphy v. Attorney General [1982] I.R. 241, 286, per Kenny J.
30. Second, as O’Donnell J. noted in his judgment in Murphy v. Ireland [2014] IESC 19, [2014] 1 I.L.R.M. 457, 481, it is clear that the modem case-law on Article 40.1 endeavours to avoid any formalistic analysis such as might have been a feature of the equality jurisprudence of the 1970s and 1980s. The emphasis is instead rather on ensuring that the substance of the guarantee is upheld and, in particular, that any “significant differentiation between citizens….may still fall foul of the provision if they cannot be justified”: see [2014] 1 I.L.R.M. 457, 481-482, per O’Donnell J.

31. While it is true that, returning to the precise question at issue in Hunt, there are differences between the case of the accused who elects to plead guilty in the District Court and who is sent forward for sentence on the one hand and the accused who either pleads guilty following a return for trial in the Circuit Court or who is found guilty following a trial on indictment on the other, it is nonetheless hard to see how those differences could justify such a strikingly different treatment in terms of appellate remedies regarding sentence. Viewed through the prism of the modern Article 40.1 case-law, I very much doubt whether the actual result in Hunt would nowadays be regarded as correct. Indeed, it may be significant that in Todd v. Murphy [1999] 2 IR 1, Geoghegan J. already said as much.

32. In any event, so far as the present case is concerned, I do not think that the fact that an accused found himself obliged to appeal to the Circuit Court in order to secure a suspended sentence in the first place should be the critical fact which could justify the failure to provide for a right of appeal from the decision to re-activate that sentence.

33. With regard to the interpretation of Article 34.3.4, I agree with Finlay J. that this provision does not confer or guarantee a universal right of appeal. This point was also illustrated by the decision of Geoghegan J. in Todd v. Murphy [1999] 2 IR 1. In that case the applicant had challenged the validity of legislation which provided that the decision of the Circuit Court not to transfer a trial from one venue to another was unappealable. Geoghegan J. expressed approval for the general principles enunciated by Finlay J. in Hunt, without “necessarily endorsing the particular application of that principle” in that case. He went on to say that it was clearly open to the Oireachtas to bar an appeal from a preliminary decision of this kind, adding ([1999] 2 IR 1, 4):

“It would seem to me to be peculiarly in the interests of a fair and efficient administration of justice that there should not be a right of appeal from a decision of a trial judge as to the venue of a trial made before the trial commences. Such an appeal is likely to delay the proceedings and is open to much abuse.”
34. The right of appeal is subject to “law”, but it is now clear- in a way which was not perhaps quite the case in 1972 at the time when Hunt was decided – that where this phrase appears in the Constitution, it does not simply refer to positive law only in the sense of a statute enacted by the Oireachtas. It is rather the case that any such “law” as is envisaged by Article 34.3.4 must comply with the principles subsequently articulated by Henchy J. in King v. Attorney General [1981] I.R. 233, 257, so that the law “must [not] ignore the fundamental norms of the legal order postulated by the Constitution.” This principle was recently re­ affirmed by O’Donnell J. in Murphy in the context of Article 38.3.1 and the establishment “by law” of the Special Criminal Court. The application of the King principle meant that the question in that case thereafter became whether the provisions of the Offences against the State Act 1939 providing for the establishment of that Court were “compatible with the dictates of fairness postulated by the Constitution.”
35. If the matter is looked at this way it may be said that the existence of a right of appeal against a purely procedural ruling of a trial judge in matters relating to venue is not intrinsic to the fundamental norms postulated by the Constitution and nor is it central to the criminal justice system. As Geoghegan J. pointed out, the existence of a right of appeal against decisions in respect of venue would be likely to prove disruptive to the smooth and orderly administration of justice.

36. The right of appeal of an accused against sentence is an entirely different matter. As a matter of history, a right of appeal on the part of the accused against sentence has been a fundamental feature of the criminal justice system since the Constitution was first enacted. Indeed, leaving aside for a moment the issues raised in these proceedings, it might be said that the only example since 1937 of where an accused was not afforded a right of appeal against sentence was in the interval between the enactment of the Criminal Procedure Act 1967 and the Criminal Procedure (Amendment) Act 1973, i.e., the issue which formed the background to the issue raised in Hunt. Even then it might be said that this particular omission was an unintended by-product of the manner in which the 1967 Act had been drafted, rather than a deliberate policy on the part of the Oireachtas. To that extent, therefore, this legislative omission seems to have been regarded as something of an anomaly and the omission was, in any event, swiftly rectified by the Oireachtas once the problem came to light.

37. In view of the centrality of sentencing to the criminal justice system and given that the protection of liberty, the trial of offences in due course of law and the existence of a right of appeal are themselves all fundamental norms expressly safeguarded by the Constitution, it is difficult to see how a law which did not provide for a right of appeal against sentence imposed by a court of local and limited jurisdiction could be said to be a law which respected those fundamental norms, so that it was a “law” in the sense identified by Henchy J. in King and by O’Donnell J. in Murphy (2014). It is, perhaps, unnecessary to decide whether Article 34.3.4 requires the existence of a right of appeal against sentence on the part of an accused in every single case. It is, however, to say that the denial of a right of appeal against a sentence imposed by a court of local and limited jurisdiction is something which, at the very least, requires to be objectively justified.

38. For all of these reasons, I do not think that either aspects of the reasoning nor the actual decision in Hunt would be followed today. In arriving at this view, I do not overlook the fact that the Supreme Court dismissed an appeal from the decision of Finlay J.: see [1975] I.R. 39, 53. As no reasons were given by that Court in respect of the single judgment delivered on the constitutional question, its precedential value is difficult to discern. But even if – which is by no means clear – that decision is regarded as having endorsed the reasoning of Finlay J. in this Court, the decision in Hunt could still no longer hold as an authority because the judgment is based on a doctrinal analysis of Article 34.3.4 and Article 40.1 which has since been overtaken by a series of much later Supreme Court decisions.
Conclusions on the Article 34.3.4 issue
39. Can it be said that such objective justification is present here? For the reasons already stated with regard to the equality argument in Article 40.1, one must doubt whether such justification is or could be present. After all, to return to a point already made in that latter context, the underlying policy expressed ins. 99(12) is that the re-activation of a suspended sentence following a further conviction is not automatic. Furthermore, as is apparent from the language of s. 99(12), the Oireachtas appears to have contemplated that there should be a universal right of appeal against sentence.

40. In summary, therefore, for the reasons I have already stated, it follows that the legislative failure to provide an accused a right of appeal against the re-activation of a suspended sentence imposed by the Circuit Court amounts to a breach of Article 40.1 and Article 34.3.4.
What relief is available to the plaintiff!
41. In these proceedings the plaintiff has claimed a declaration that s. 99 is unconstitutional. It is true that in one sense the plaintiff is affected by the operation of s. 99(12) in that it is pursuant to those provisions that the suspended sentence was thereafter activated. But this is not the real source of his complaint, since the objection to s. 99 is not really to that which it contains, but rather in respect of what it does not contain. The two separate findings of unconstitutionality (in respect of both Article 34.3.4 and Article 40.1) relate to a legislative failure to provide a right of appeal for an accused person whose sentence has been re-activated.

42. In these circumstances, given that the identified unconstitutionality relates to a legislative lacuna, an order declaring the section to be unconstitutional would generally be inappropriate. Just as I observed in BG v. Ireland (No.2) [2011] IEHC 445, [2011] 3 IR 748, 767 (where a similar unconstitutional lacuna had come to light), a finding of unconstitutionality would serve no real purpose in the present case “other than a Samson-like collapsing of the legislative pillars which gave rise to the unconstitutionality in the first instance.” At the same time, the court must fashion an effective remedy to address the legislative lacuna if it is to be faithful to the constitutional command contained in Article 40.3.1 to “defend and vindicate the personal rights of the citizen”, so far as it is practicable to do so. It is in these particular circumstances that the court “will feel obliged to fashion its own remedy”: see McDonnell v. Ireland [1998] 1 I.R. 134, 148, per Barrington J.

43. Similar views were expressed by Murray C.J. in Carmody v. Minister for Justice [2009] IESC 71, [2010] 1 IR 635, 668- where an unconstitutional legislative lacuna of this kind has been identified- to the effect that in this type of case the court enjoys a constitutional jurisdiction “to grant such remedy as it considers necessary to vindicate the right concerned.” In that case the applicant contended that the fact that he had no right to apply for criminal legal aid in a District Court trial which would provide him with representation by counsel as well as a solicitor and therefore no right to be granted such legal aid where the essential interests of justice so require. The Supreme Court held while that the Criminal Justice (Legal Aid) Act 1962 was not unconstitutional, the failure to make provision in suitable cases for the present of counsel at a criminal trial was, objectively, a breach of the accused’s entitlement under Article 38.1 to trial in due course of law. Viewed thus, Carmody is really a classic example of an unconstitutional lacuna where the invalidation of the underlying legislation is neither an appropriate or a necessary remedy.

44. What, then, should the remedy in the present case actually be? In Byrne v. Director of Oberstown School [2013] IEHC 562, [2014] 1 I.L.R.M. 346 I noted that that, in theory, at any rate, “once an unconstitutional omission is judicially identified then the solution generally best lies with the legislative branch” and that since the constitutional command related to equality before the law ([2014] 1 I.L.R.M. 346, 358):

“in the wake of such a judicial determination the choice rests with the Oireachtas to decide whether to level up or level down so that the precepts of Article 40.1 are thereby satisfied.”
45. I continued by noting that in practice matters may not be quite that simple ([2014] 1 I.L.R.M. 346 at 358-359):
“What, then, is the situation in the present case? In theory, perhaps, the Oireachtas and the Minister could bring about equality by abolishing the remission regime for all offenders. In practice, however, this would be all but impossible, certainly insofar as such an equalising measure purported to operate retroactively by removing the existing legal entitlements and expectations of serving prisoners to remission. Such a retroactive measure would be open to a host of objections and given that the entire criminal justice system has been heretofore premised on the understanding that (the special cases of murder and persons imprisoned for contempt of court aside) all other prisoners are eligible for and have an entitlement to remission….one may doubt whether the retroactive removal of remission in this fashion would survive constitutional scrutiny.
Just as in Carmody and SM, therefore, there is no realistic option open other than to find that the failure to provide for the same remission regime at Oberstown as applies to offenders detained at St. Patrick’s Institution violates the precept of equality in Article 40.1. This means in turn that the failure to afford the applicant the same remission entitlements as other young offenders violates his constitutional rights.

. . ..In these circumstances it must be adjudged that by reason of the continued application to him of this unconstitutional legislative omission, the applicant’s continued detention at Oberstown is not in accordance with law. In accordance, therefore, with the requirements of Article 40.4.2 of the Constitution, it follows that I must direct his release from that custody.”

46. The present case is different again. Even though I have found that the denial to the plaintiff of a right of appeal is a violation of both Article 34.3.4 and Article 40.1, the parameters of such a right of appeal are entirely a matter of legislative policy which is committed to the Oireachtas alone. Specifically, the unconstitutionality cannot, perhaps, be as readily cured in the same manner as happened in cases such as SM (No.2) and BG (No.2). These were both sentencing cases where specific classes of defendants were unconstitutionally exposed to the prospect of a higher maximum sentence than other similarly situated defendants. In both cases it was held that the legislative omission could be cured by declarations which ensured that there was only one uniform maximum sentence.
47. In the present case, the equivalent remedy might be to create a right of appeal for the accused persons in the same position as the plaintiff. In that hypothetical scenario, all accused persons would enjoy equivalent rights of appeal following the re-activation of suspended sentences which had been imposed in respect of summary offences, thus satisfying the requirements of both Article 34.3.4 and Article 40.1. That, however, is a remedy which lies far beyond the judicial capacity to effectuate or to create. It would be a matter for the Oireachtas to determine by law how such a right of appeal might be exercised, not least the identity and composition of the court which might be assigned jurisdiction to hear such an appeal.

48. In Byrne the unconstitutional discrimination consisted of the failure to apply the same type of sentence remission to similarly situated categories of young offenders depending on the identity of the institution in which they were detained. In those circumstances, I found that the only practical way of curing this unconstitutionality and providing an effective remedy for this violation was to treat the remission rules applicable to offenders detained at St Patrick’s Institution as being also applicable to those detained at Oberstown School.

49. More importantly, a similar solution was devised by the Supreme Court in Carmody where, as we have seen, the lacuna stemmed from the failure of the Criminal Justice (Legal Aid) Act 1962 to allow for the provision of counsel in certain types of cases. On this basis the applicant in that case had claimed that s. 2(1) of the Act was repugnant to the Constitution. Dealing with the question of remedy Murray C.J. stated ([2010] 1 IR 635, 668-670):

“The Court has already determined that the denial of an opportunity to apply for and be granted, where appropriate, such legal aid is a denial of a constitutional right. He is entitled to have that constitutional right vindicated. Article 40.3 of the Constitution imposes on the organs of government of the State the duty to defend and vindicate the personal rights of the citizen……
The Court is satisfied that it would be unjust and contrary to the appellant’s right to a trial “in due course of law” as required by Article 38.1 of the Constitution if the prosecution of the charges brought against him were allowed to proceed while he is denied the right to apply for legal aid to include solicitor and counsel and have that application determined on its merits. To allow a trial to proceed without any possibility of determining whether it was essential to a fair hearing that the defendant be represented by solicitor and counsel would be, in the words of O’Higgins C.J., in [The State (Healy) v. Donoghue [1976] I.R. 325, 351] “to tolerate injustice”.

………..Accordingly the Court will grant a declaration that the appellant has a constitutional right to apply, prior to being tried, for legal aid in the criminal proceedings brought against him in the District Court and to have that application heard and determined on its merits. It will also make an order prohibiting the prosecution from proceeding in respect of the criminal charges referred to in these proceedings unless and until the appellant is afforded that right.”

50. I propose to apply by analogy the solution devised by the Supreme Court in Carmody to the present case. Compliance with the obligations placed on this Court by Article 40.3 to vindicate the constitutional rights of the plaintiff requires that he is nonetheless entitled to a real remedy in order to ensure that these rights are not further infringed.
51. Accordingly, for so long as sentenced persons such as the plaintiff are denied a right of appeal against the re-activation of the sentence for a summary offence by the Circuit Court, the only effective yet practicable remedy which can be devised to ensure that this unconstitutionality is adequately mitigated is to declare that it would be unconstitutional to give effect to the re-activated sentence in the absence of a legally conferred right of appeal.
Conclusions
52. It remains only to summarise my principal conclusions:

53. First, the starkly different treatment of the rights of appeal of convicted persons whose suspended sentence in respect of summary offences was originally imposed by the Circuit Court rather than the District Court is not objectively justifiable and amounts to a breach of the equality guarantee in Article 40.1. This is especially so given that s. 99(12) of the 2006 Act (as amended) pre-supposes that all such offenders will enjoy a right of appeal against the re-activation of such a sentence and as s. 99(10) makes it clear that such re-activation was not intended to operate automatically in every single case.

54. Second, the failure to provide a right of appeal against the re-activation of a suspended sentence by a court of local and limited jurisdiction involves a failure to provide a right of appeal in the manner determined “by law” for the purposes of Article 34.3.4, at least, where, as here, no objective justification for such failure has been supplied. By failing to providing for such a right of appeal, the Oireachtas has failed to comply with fundamental constitutional norms in the sense identified by Henchy J. in King and, more recently, by O’Donnell J. in Murphy.

55. Third, given the unconstitutionality which has been just identified relates not to what is contained ins. 99 of the 2006 Act, but rather to that which it does not contain, it would be both inappropriate and unnecessary to make a formal declaration of unconstitutionality invalidating s. 99 itself.

56. Fourth, the plaintiff is nonetheless entitled to a real remedy to ensure that his constitutional rights are not further infringed. In these circumstances, adapting by analogy the solution devised by the Supreme Court in Carmody in respect of the unconstitutional legislative omission identified in that case, I propose to grant an order declaring that it would be unconstitutional to give effect to the re-activated sentence in the absence of a statutorily conferred right of appeal against the decision of the Circuit Court to re-activate the sentence.

 

People (DPP) v McCabe (No.2)

, unreported, Court of Criminal Appeal, July 13, 2005,
JUDGMENT of the court delivered by Kearns J. on the 13th day of July, 2005
This is an application brought by the applicant for a review of the sentence imposed on the respondent in the Central Criminal Court (Carney J.) on the 11th October, 2004, the respondent having pleaded guilty on the 10th June, 2004, to aggravated sexual assault on a female foreign national in Dundalk on the 13th September, 2002, the said assault being contrary to s.3 of the Criminal Law (Rape) (Amendment) Act, 1990. At the conclusion of the sentencing hearing, and in circumstances where the respondent had offered compensation to the victim in the sum of €15,000, which said sum the victim had accepted, the learned trial judge imposed a term of 4 years imprisonment, but suspended same on condition that the respondent enter into a bond to keep the peace and be of good behaviour for a period of 3 years. He also ordered that the respondent’s name be entered in the Sex Offender’s Register.

The present application is one brought by the Director of Public Prosecutions pursuant to s.2 of the Criminal Justice Act, 1993, which provides:-

“If it appears to the Director of Public Prosecutions that a sentence imposed by a court … on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.”
The facts of the case were as follows. The victim was employed as a shop assistant in a 24 hour shop in Dundalk. At approximately 5 a.m. on the morning of the 13th September, 2002, the respondent entered the shop enquiring how he could get a taxi. The victim directed him to a nearby rank, but some minutes later the respondent re-entered the shop and bought a mineral. Having left, he returned on a third occasion and closed the door of the shop behind him. He then grabbed and pushed his victim, telling her he wanted sex with her. She tried to get away, but he pushed her into a store area towards the rear of the shop premises. He knocked her to the floor and she hit her head on the floor. He told her that he had a knife. He then removed her shoes, trousers and underwear and a portion of his own clothing. She made a number of efforts to get up but was pushed back down. Due to the fact he had consumed an enormous amount of alcohol, it appears he was unable to achieve an erection and a very frightening episode was brought to an end when some other person entered the shop premises.
Shortly afterwards, within 30 minutes of this attack, the respondent was arrested by Dundalk Gardaí and immediately admitted to having done something “awful stupid – my life is over”.

He was brought following his arrest to Dundalk Garda Station where he made a full statement after caution. In the statement he recorded how he had been drinking and gambling throughout the previous day in Cootehill. Towards the end of the evening, he heard talk about a lap-dancing club in Dundalk and decided to go there. He arrived some time after midnight and remained in the lap-dancing club until about 4a.m.. He was then unable to get a taxi. In his statement he blamed the fact that he had drunk so much and the effects of witnessing lap-dancing for what had happened. The respondent is a farmer and married man who had a 2 year old child at the time and no previous convictions.

Two victim impact reports were tendered to the sentencing judge, dated 17th August, 2003, and 30th July, 2004, respectively.

From these reports it is clear that the victim was badly traumatized by the sexual assault which had lasted between 20-25 minutes. The victim had great difficulty in sleeping thereafter and felt contaminated as a result of being touched by the respondent. She would take showers and wash herself up to 5 or 6 times a day and wanted to scratch her skin off as her assailant had touched it. She attended the Rape Crisis Centre for about 5 months but didn’t find it helpful. She was diagnosed as suffering from post-traumatic stress disorder to a severe degree. She was particularly worried that people might think that she was responsible for the assault. She was prescribed medication by a psychiatrist and the later report of Michael Dempsey, senior clinical psychologist, strongly recommends that the victim engage in further counselling in relation to the assault.

In the course of the sentencing hearing on the 11th October, 2004, Michael O’Higgins, senior counsel for the respondent, advised the court that the respondent had had a problem with alcohol abuse, particularly when, as in this case, he engaged in binge-drinking, but he had remained alcohol-free since the incident. He had no previous convictions and had not since come to the attention of the gardaí in any manner whatsoever. He called his client to the witness box to apologise to the victim and to express his remorse for the hurt which he had caused to his victim. Counsel further intimated to the sentencing judge that the respondent had in court a bank draft in the sum of €15,000 payable to the victim, and advised the sentencing judge that the victim was willing to accept it.

When the plea in mitigation was concluded, the learned trial judge addressed counsel for the Director of Public Prosecutions as follows:-

“Mr. Justice Carney: Mr. Segrave, I don’t care how this money is dressed up or what it is called, has the injured party addressed the issues that arise if I allow it to be accepted?
Mr. Segrave: I don’t know if she has my lord.
Mr. Justice Carney: It is not my practice to combine payment of monies with imprisonment. Do you wish to consult with her?
Mr. Segrave: Yes, if your lordship would give me five minutes”

There then followed a short adjournment, following which the sentencing judge was advised by counsel for the Director that the victim was prepared to accept the sum offered “knowing” what the consequences of the acceptance might be.
Thereafter in imposing sentence the learned trial judge declared the accused to be a sex offender pursuant to the Sex Offenders Act, 2001, and directed the issue of a certificate in accordance with the provisions of the Sex Offenders Act, 2001. He noted that the accused did not have a knife, but nonetheless had told his victim that he had a knife in conjunction with his demand for sex. He then continued:-

“Had I been proceeding to sentence, I had determined that the sentence I was going to impose was either one of 4 years or 5 years, I had not quite decided before the intervention of the €15,000 came into the case, and I would have given him the usual consideration that any person is given who brings in his plea at an early stage, thus enabling the court to devote his slot to dealing with some other violent individual…In this case, a sum of €15,000 has been put together by way of compensation. Now Mr. O’Higgins endeavored to use another term, but it is only playing games to call compensation something else. I have indicated that it is not my practice to combine the payment of money with imprisonment and the victim has had the opportunity to make a free choice in this matter. She has decided to accept the €15,000. Now that being so, I impose a sentence of 4 years imprisonment, suspended on the accused entering a bond in his own sum of €1,000 to keep the peace for the next 3 years.”
In the course of the appeal before this court, counsel on behalf of the Director of Public Prosecutions submitted that it was an error in principle that the victim of a criminal offence should by any decision of hers be drawn into the process of sentencing and that any such practice, if such it could be called, was inherently objectionable and contrary to public policy. In support of this submission, counsel relied upon a decision of this court delivered in D.P.P. v. Carey (unreported, 10th April, 2005) where this court (Hardiman J.) found that the judge dealing with a review, who had not been the original trial judge, should not have sought the views of the husband of a deceased traffic victim as to whether, in the course of a review of a 10 year sentence, he should suspend the balance of the sentence at the review stage. The court had emphasized that the selection of penalties was part of the judicial function reserved to the court and that any such question was unfair.
Counsel also submitted that any practice whereby the payment of compensation would preclude the imposition of a custodial sentence would lead to a variety of highly unsatisfactory outcomes. For example, certain victims might be impecunious and as a result feel constrained to accept compensation which, if they were in different financial circumstances, they might well refuse. There might also be close relatives who would exert pressure on the victim to make a decision in favour of accepting compensation contrary to the wishes of the victim. It was further submitted that any form of “cheque-book” defence culminating in an agreed payment was also highly objectionable in that it was capable of discriminating between rich and poor offenders in a totally arbitrary manner. Further, it was submitted, the terms of s.6 of the Criminal Justice Act, 1993, were quite explicit in stating that the court had a discretion with regard to compensation, to order payment of same either “instead of or in addition to dealing with [the accused] in any other way”. The learned trial judge, however, had proceeded as though he lacked such discretion or that there was a substantial body of jurisprudence or settled practice which strongly suggested that he approach the question of sentence in the manner which he had done. This was plainly incorrect and no citation of any Irish authority had appeared to suggest that this was the law in Ireland.

In reply, counsel on behalf of the respondent argued that the Director of Public Prosecutions representative should have objected at the time of sentence if objection was being taken to the practice adopted by the learned trial judge. He submitted it was unfair now to attempt to review the sentence by way of appeal when no objection to the manner in which the trial judge had intimated he would deal with the matter had been made at the time.

Mr. O’Higgins further emphasized that the payment had no strings attached, nor had there been any negotiations prior to making the payment, other than to enquire if the victim was willing to accept the sum offered. Counsel agreed that it was undesirable that a victim in these circumstances be drawn into any form of discussions or negotiations as to amount in any sort of bargaining process.

He further stressed there was no “cheque-book” dimension to the present case. The respondent was a small farmer who had liquidated his herd of cattle to raise the funds to make the compensation payment. It was as far removed from any hypothetical case of a wealthy offender buying his way out of trouble as one could imagine.

Insofar as the actual sentence was concerned, Mr. O’Higgins further argued that even if incorrect in principle, the learned trial judge’s sentence should not be interfered with. Amongst the grounds relied upon in making this argument were:-

(a) The case was now nearly 3 years old and the respondent had had it hanging over him throughout that period of time.
(b) The respondent had admitted to the offence the moment he was apprehended and had made a full confession thereafter, followed by an early plea of guilt.
(c) The respondent was of good character and was genuinely remorseful for what he had done.
(d) The respondent had paid a substantial sum by way of compensation and had sold off his herd on the farm for that purpose.
(e) The respondent had a major drink problem at the time and had since given up drinking completely.
(f) The respondent was an excellent prospect for rehabilitation, the particular offence being totally out of character and one which emerged out of the peculiar circumstances of the night in question.
Furthermore, despite the generally accepted principles requiring the imposition of a custodial sentence in rape cases as enunciated in D.P.P. v. Tiernan [1988] I.R. 250, the Court of Criminal Appeal had more recently confirmed in D.P.P. v. NY [2002] 4 I.R. 309 that in exceptional cases it was not mandatory to impose a sentence of actual imprisonment. Mr. O’Higgins submitted that the present case was one which , for the reasons cited, qualified as an exceptional case.

DECISION

Section 6 of the Criminal Justice Act, 1993, provides:-

“(1) Subject to the provisions of this section, on conviction of any person of an offence, the court, instead of or in addition to dealing with him in any other way, may, unless it sees reason to the contrary, make (on application or otherwise) an order (in this Act referred to as a “compensation order”) requiring him to pay compensation in respect of any personal injury or loss resulting from that offence (or any other offence that is taken into consideration by the court in determining sentence) to any person (in this Act referred to as the “injured party”) who has suffered such injury or loss.
(2) The compensation payable under a compensation order … shall be of such amount … as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the convicted person, the injured party or the prosecutor, and shall not exceed the amount of the damages that, in the opinion of the court, the injured party would be entitled to recover in a civil action against the convicted person in respect of the injury or loss concerned.

(5) In determining whether to make a compensation order against a person, and in determining the amount of the compensation, the court shall have regard—

( a ) to his means, …

(13) In assessing for the purposes of this section the means of a person, the court shall take into account his financial commitments.”

The starting point where sentencing in a case of this nature is concerned is to give due regard to the views of the Supreme Court expressed in The People (Director of Public Prosecutions) v. Tiernan [1988] I.R. 250, in which the Supreme Court considered the principles appropriate to sentencing in a rape case, bearing in mind, however, that no rape occurred in the instant case, but rather an aggravated sexual assault. Finlay C.J. in the course of his judgment in that case stated at p. 253:-
“Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him, it is not easy to imagine the circumstance which would justify departure from a substantial immediate custodial sentence for rape and I can only express the view that they would probably be wholly exceptional.”
While as already emphasized, this is not a rape case, the learned trial judge in the course of the sentencing hearing expressed himself satisfied that the respondent endeavoured to rape his victim and that the only reason that rape did not occur was because she successfully resisted. One might perhaps add that the amount of alcohol consumed by the accused undoubtedly impaired the ability of the respondent to actually rape his victim. Nonetheless, it appears to this court that the observations of the former Chief Justice are apposite to cases such as that under consideration in the present case.
The court would be strongly of the view that the payment of money cannot, of itself, be viewed as an “exceptional circumstance”. This issue was recently considered by this court in The People (D.P.P.) v. C. (unreported, 18th February, 2002). In that case, the same learned trial judge (Carney J.) had dealt with the issue of compensation offered or paid to the victim of a sexual assault by the perpetrator. In the course of passing sentence in that case the learned trial judge stated:-

“My experience over 35 years in the practice of criminal law is that a compensation sentence has never been mixed with a custodial sentence and the Act gives me express statutory jurisdiction to follow that long time practice in the Irish Courts and accordingly in the light of the compensation which has been paid and which has been accepted, I conditionally suspend the sentence. I want to make it clear that I would not have adopted this course had I not been satisfied that it was fully present in the mind of the victim that in the event of the compensation being accepted that the probabilities were that the matter would be dealt with non-custodially.”
However, despite the reference by Carney J. in that case to an “established jurisprudence” which would justify him in adopting the course he did, Murray J. (as he then was) in D.P.P. v. C noted (at p.6):-
“Even though such a practice may very well have been extant in some courts in respect of certain offences, the court is not at all satisfied that it has been a universal practice of the courts to apply such a principle that would exclude the imposition of a custodial sentence as a matter of principle or practice in all cases where compensation has been offered and accepted by the victim.
Indeed, in enacting s.6(1) of the 1993 Act, the Oireachtas clearly intended that a sentencing court should have discretion when it makes an order requiring compensation to be paid by a convicted person to a victim that it be in addition to or instead of a custodial sentence and the Oireachtas conferred such a discretion on the court. The court feels that this is probably no more than to clarify the existing law as it always has been. It is axiomatic to say that in imposing a sentence the sentencing court must take into account all the relevant circumstances of the particular case. As Barron J. said in D.P.P. v. McCormack (unreported, 2000):-

‘Each case must depend on 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 the accused.’
Of course there are, and it is not necessary for this court to go into them exhaustively, other factors which are relevant to the sentencing process and which are daily taken into account by a sentencing court, such as the gravity of the offence, the previous record of the accused, the impact of the offence upon a victim, the prospect of rehabilitation and the need to deter the commission of such offences or crimes generally. All of these are factors which are taken into account and the payment of compensation is just one of those factors to be taken into account. It has never been, as far as this court is aware, a principle that a custodial sentence is to be excluded where compensation has been paid, nor has it ever been considered as an appropriate way to approach sentencing in this court and this court holds that it is a mitigating factor but only one of several and does not and can not in practice or in principle always preclude the imposition of a custodial sentence where that is otherwise the appropriate sentence to be imposed.”
Later in the same judgment, the Court of Criminal Appeal expressly stated that the attitude of the victim to compensation was not a relevant factor in this context and that the primary purpose of s.6 of the 1993 Act is to enable the court to impose an order directing the payment of compensation where it considers it appropriate “even against the wishes of an accused or convicted person”.
A number of English authorities were briefly opened by counsel for the applicant in the course of this hearing to suggest that compensation could be directed to be paid even where a custodial sentence is being imposed, but the court is quite satisfied that it need look no further than the judgment just cited to obtain all the guidance it requires to resolve the issues before this court. The court is quite satisfied that there is no jurisprudence, principle or practice which renders the payment of compensation to the victim of a sexual assault inconsistent with the imposition of a custodial sentence. Indeed, any such supposed practice conflicts with and contradicts the express wording of s.6 of the Criminal Justice Act, 1993, which states that any direction to pay compensation may be “instead of or in addition to dealing with him in any other way.”

This court agrees with the submissions made by counsel on behalf of the applicant and would be strongly of the view that victims in circumstances of this nature should not be drawn into any sort of pro-active role in determining or negotiating the amount of any compensation which an accused person may offer with a view to mitigating sentence. The extent of the victim’s involvement should be either to indicate a willingness to accept or refuse any sum of compensation that may be offered. Thereafter, it is entirely a matter for the court to determine the appropriate sentence having regard to all the multiple considerations which must be borne in mind in this context, including any payment of compensation offered or made. It is inappropriate in the view of the court to draw the victim in any way into the decision as to the amount of sentence.

While noting the argument of counsel for the respondent that no objection was taken on behalf of the Director to the proposed course of action adopted by the learned trial judge on this issue, it is quite clear from a perusal of the transcript that the learned trial judge had in his own mind the view that there was a clear and settled practice in this regard, namely, to impose a non-custodial sentence in any case where the victim was prepared to accept a sum by way of compensation. The victim had further been informed or advised that a likely consequence of such acceptance was the imposition of a non-custodial sentence. The court views the overall approach of the learned trial judge to sentence in this case as mistaken and will hold that there was an error of principle in the manner in which sentence was imposed, such as to require this court to consider what the appropriate sentence should have been, due credit being given for the payment made of €15,000.

Despite the serious nature of this aggravated assault, the court is of the view that this case comes within the category of exceptional cases noted in The People (D.P.P.) v. NY [2002] 4 I.R. 309. In that particular case, the exceptional circumstances identified included the accused’s early remorse for his rape offence and his exceptionally honest acceptance of responsibility, including his plea of guilty and his general good character. Furthermore, as in the instant case, the accused was going to bear the stigma of being certified as a sex offender under the Sex Offenders Act, 2001. He had already served 7 months in prison, a factor which in that case persuaded the Court of Criminal Appeal to suspend the balance of the 3 year sentence originally imposed.

In the instant case, the court is satisfied that the events of the night in question were quite exceptional and that the exposure of the respondent to large amounts of alcohol and displays of lap-dancing in a nightclub in Dundalk triggered an episode which was quite out of keeping with the character of the respondent. He was at the time a married man with a young child who had never been in any sort of trouble with the law before. He was apprehended by the gardai within 30 minutes of the offence and immediately faced-up to his responsibilities and confessed his guilt. He made a full statement following his arrest in Dundalk Garda Station. He has made a full apology to his victim for the horrifying ordeal to which he subjected her. While his victim undoubtedly believed she would be raped, the evidence on the sentencing hearing was that there had been no penetration, although the victim did have some bruises and was undoubtedly severely traumatized by her experience.

Since the time of the offence, the respondent has given up alcohol completely, notwithstanding which his marriage has apparently collapsed because of the ramifications of this assault. For the purpose of raising the necessary amount to pay compensation, he sold off his herd of cattle to raise the sum offered in compensation. The victim did of her own volition freely accept this compensation which is undoubtedly a factor which the court can, and must, take into account in deciding what the appropriate sentence should be. In the view of the court, the respondent is a good prospect for rehabilitation and is extremely unlikely to reoffend for all the reasons just described.

Furthermore, he has had this hearing hanging over him for a period of almost 3 years. In circumstances where the respondent had been led to believe that a non-custodial sentence would be imposed and in circumstances where the victim indicated a willingness to accept the sum offered, the court would be of the view that fairness would require that a custodial sentence only be imposed where there had been an actual rape or some other major aggravating factor.

In the quite exceptional circumstances that obtain in this case, the court is of the view that, although the learned trial judge erred in principle in the manner in which he approached sentence, the sentence which he actually imposed was appropriate and will accordingly refuse the application.

 

People (DPP) v McLaughlin [2005] 3 I.R. 199

JUDGMENT of the court delivered by Kearns J. on the 13th day of July, 2005
This is an application brought by the applicant for a review of the sentence imposed on the respondent in the Central Criminal Court (Carney J.) on the 11th October, 2004, the respondent having pleaded guilty on the 10th June, 2004, to aggravated sexual assault on a female foreign national in Dundalk on the 13th September, 2002, the said assault being contrary to s.3 of the Criminal Law (Rape) (Amendment) Act, 1990. At the conclusion of the sentencing hearing, and in circumstances where the respondent had offered compensation to the victim in the sum of €15,000, which said sum the victim had accepted, the learned trial judge imposed a term of 4 years imprisonment, but suspended same on condition that the respondent enter into a bond to keep the peace and be of good behaviour for a period of 3 years. He also ordered that the respondent’s name be entered in the Sex Offender’s Register.

The present application is one brought by the Director of Public Prosecutions pursuant to s.2 of the Criminal Justice Act, 1993, which provides:-

“If it appears to the Director of Public Prosecutions that a sentence imposed by a court … on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.”
The facts of the case were as follows. The victim was employed as a shop assistant in a 24 hour shop in Dundalk. At approximately 5 a.m. on the morning of the 13th September, 2002, the respondent entered the shop enquiring how he could get a taxi. The victim directed him to a nearby rank, but some minutes later the respondent re-entered the shop and bought a mineral. Having left, he returned on a third occasion and closed the door of the shop behind him. He then grabbed and pushed his victim, telling her he wanted sex with her. She tried to get away, but he pushed her into a store area towards the rear of the shop premises. He knocked her to the floor and she hit her head on the floor. He told her that he had a knife. He then removed her shoes, trousers and underwear and a portion of his own clothing. She made a number of efforts to get up but was pushed back down. Due to the fact he had consumed an enormous amount of alcohol, it appears he was unable to achieve an erection and a very frightening episode was brought to an end when some other person entered the shop premises.
Shortly afterwards, within 30 minutes of this attack, the respondent was arrested by Dundalk Gardaí and immediately admitted to having done something “awful stupid – my life is over”.

He was brought following his arrest to Dundalk Garda Station where he made a full statement after caution. In the statement he recorded how he had been drinking and gambling throughout the previous day in Cootehill. Towards the end of the evening, he heard talk about a lap-dancing club in Dundalk and decided to go there. He arrived some time after midnight and remained in the lap-dancing club until about 4a.m.. He was then unable to get a taxi. In his statement he blamed the fact that he had drunk so much and the effects of witnessing lap-dancing for what had happened. The respondent is a farmer and married man who had a 2 year old child at the time and no previous convictions.

Two victim impact reports were tendered to the sentencing judge, dated 17th August, 2003, and 30th July, 2004, respectively.

From these reports it is clear that the victim was badly traumatized by the sexual assault which had lasted between 20-25 minutes. The victim had great difficulty in sleeping thereafter and felt contaminated as a result of being touched by the respondent. She would take showers and wash herself up to 5 or 6 times a day and wanted to scratch her skin off as her assailant had touched it. She attended the Rape Crisis Centre for about 5 months but didn’t find it helpful. She was diagnosed as suffering from post-traumatic stress disorder to a severe degree. She was particularly worried that people might think that she was responsible for the assault. She was prescribed medication by a psychiatrist and the later report of Michael Dempsey, senior clinical psychologist, strongly recommends that the victim engage in further counselling in relation to the assault.

In the course of the sentencing hearing on the 11th October, 2004, Michael O’Higgins, senior counsel for the respondent, advised the court that the respondent had had a problem with alcohol abuse, particularly when, as in this case, he engaged in binge-drinking, but he had remained alcohol-free since the incident. He had no previous convictions and had not since come to the attention of the gardaí in any manner whatsoever. He called his client to the witness box to apologise to the victim and to express his remorse for the hurt which he had caused to his victim. Counsel further intimated to the sentencing judge that the respondent had in court a bank draft in the sum of €15,000 payable to the victim, and advised the sentencing judge that the victim was willing to accept it.

When the plea in mitigation was concluded, the learned trial judge addressed counsel for the Director of Public Prosecutions as follows:-

“Mr. Justice Carney: Mr. Segrave, I don’t care how this money is dressed up or what it is called, has the injured party addressed the issues that arise if I allow it to be accepted?
Mr. Segrave: I don’t know if she has my lord.
Mr. Justice Carney: It is not my practice to combine payment of monies with imprisonment. Do you wish to consult with her?
Mr. Segrave: Yes, if your lordship would give me five minutes”

There then followed a short adjournment, following which the sentencing judge was advised by counsel for the Director that the victim was prepared to accept the sum offered “knowing” what the consequences of the acceptance might be.
Thereafter in imposing sentence the learned trial judge declared the accused to be a sex offender pursuant to the Sex Offenders Act, 2001, and directed the issue of a certificate in accordance with the provisions of the Sex Offenders Act, 2001. He noted that the accused did not have a knife, but nonetheless had told his victim that he had a knife in conjunction with his demand for sex. He then continued:-

“Had I been proceeding to sentence, I had determined that the sentence I was going to impose was either one of 4 years or 5 years, I had not quite decided before the intervention of the €15,000 came into the case, and I would have given him the usual consideration that any person is given who brings in his plea at an early stage, thus enabling the court to devote his slot to dealing with some other violent individual…In this case, a sum of €15,000 has been put together by way of compensation. Now Mr. O’Higgins endeavored to use another term, but it is only playing games to call compensation something else. I have indicated that it is not my practice to combine the payment of money with imprisonment and the victim has had the opportunity to make a free choice in this matter. She has decided to accept the €15,000. Now that being so, I impose a sentence of 4 years imprisonment, suspended on the accused entering a bond in his own sum of €1,000 to keep the peace for the next 3 years.”
In the course of the appeal before this court, counsel on behalf of the Director of Public Prosecutions submitted that it was an error in principle that the victim of a criminal offence should by any decision of hers be drawn into the process of sentencing and that any such practice, if such it could be called, was inherently objectionable and contrary to public policy. In support of this submission, counsel relied upon a decision of this court delivered in D.P.P. v. Carey (unreported, 10th April, 2005) where this court (Hardiman J.) found that the judge dealing with a review, who had not been the original trial judge, should not have sought the views of the husband of a deceased traffic victim as to whether, in the course of a review of a 10 year sentence, he should suspend the balance of the sentence at the review stage. The court had emphasized that the selection of penalties was part of the judicial function reserved to the court and that any such question was unfair.
Counsel also submitted that any practice whereby the payment of compensation would preclude the imposition of a custodial sentence would lead to a variety of highly unsatisfactory outcomes. For example, certain victims might be impecunious and as a result feel constrained to accept compensation which, if they were in different financial circumstances, they might well refuse. There might also be close relatives who would exert pressure on the victim to make a decision in favour of accepting compensation contrary to the wishes of the victim. It was further submitted that any form of “cheque-book” defence culminating in an agreed payment was also highly objectionable in that it was capable of discriminating between rich and poor offenders in a totally arbitrary manner. Further, it was submitted, the terms of s.6 of the Criminal Justice Act, 1993, were quite explicit in stating that the court had a discretion with regard to compensation, to order payment of same either “instead of or in addition to dealing with [the accused] in any other way”. The learned trial judge, however, had proceeded as though he lacked such discretion or that there was a substantial body of jurisprudence or settled practice which strongly suggested that he approach the question of sentence in the manner which he had done. This was plainly incorrect and no citation of any Irish authority had appeared to suggest that this was the law in Ireland.

In reply, counsel on behalf of the respondent argued that the Director of Public Prosecutions representative should have objected at the time of sentence if objection was being taken to the practice adopted by the learned trial judge. He submitted it was unfair now to attempt to review the sentence by way of appeal when no objection to the manner in which the trial judge had intimated he would deal with the matter had been made at the time.

Mr. O’Higgins further emphasized that the payment had no strings attached, nor had there been any negotiations prior to making the payment, other than to enquire if the victim was willing to accept the sum offered. Counsel agreed that it was undesirable that a victim in these circumstances be drawn into any form of discussions or negotiations as to amount in any sort of bargaining process.

He further stressed there was no “cheque-book” dimension to the present case. The respondent was a small farmer who had liquidated his herd of cattle to raise the funds to make the compensation payment. It was as far removed from any hypothetical case of a wealthy offender buying his way out of trouble as one could imagine.

Insofar as the actual sentence was concerned, Mr. O’Higgins further argued that even if incorrect in principle, the learned trial judge’s sentence should not be interfered with. Amongst the grounds relied upon in making this argument were:-

(a) The case was now nearly 3 years old and the respondent had had it hanging over him throughout that period of time.
(b) The respondent had admitted to the offence the moment he was apprehended and had made a full confession thereafter, followed by an early plea of guilt.
(c) The respondent was of good character and was genuinely remorseful for what he had done.
(d) The respondent had paid a substantial sum by way of compensation and had sold off his herd on the farm for that purpose.
(e) The respondent had a major drink problem at the time and had since given up drinking completely.
(f) The respondent was an excellent prospect for rehabilitation, the particular offence being totally out of character and one which emerged out of the peculiar circumstances of the night in question.
Furthermore, despite the generally accepted principles requiring the imposition of a custodial sentence in rape cases as enunciated in D.P.P. v. Tiernan [1988] I.R. 250, the Court of Criminal Appeal had more recently confirmed in D.P.P. v. NY [2002] 4 I.R. 309 that in exceptional cases it was not mandatory to impose a sentence of actual imprisonment. Mr. O’Higgins submitted that the present case was one which , for the reasons cited, qualified as an exceptional case.

DECISION

Section 6 of the Criminal Justice Act, 1993, provides:-

“(1) Subject to the provisions of this section, on conviction of any person of an offence, the court, instead of or in addition to dealing with him in any other way, may, unless it sees reason to the contrary, make (on application or otherwise) an order (in this Act referred to as a “compensation order”) requiring him to pay compensation in respect of any personal injury or loss resulting from that offence (or any other offence that is taken into consideration by the court in determining sentence) to any person (in this Act referred to as the “injured party”) who has suffered such injury or loss.
(2) The compensation payable under a compensation order … shall be of such amount … as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the convicted person, the injured party or the prosecutor, and shall not exceed the amount of the damages that, in the opinion of the court, the injured party would be entitled to recover in a civil action against the convicted person in respect of the injury or loss concerned.

(5) In determining whether to make a compensation order against a person, and in determining the amount of the compensation, the court shall have regard—

( a ) to his means, …

(13) In assessing for the purposes of this section the means of a person, the court shall take into account his financial commitments.”

The starting point where sentencing in a case of this nature is concerned is to give due regard to the views of the Supreme Court expressed in The People (Director of Public Prosecutions) v. Tiernan [1988] I.R. 250, in which the Supreme Court considered the principles appropriate to sentencing in a rape case, bearing in mind, however, that no rape occurred in the instant case, but rather an aggravated sexual assault. Finlay C.J. in the course of his judgment in that case stated at p. 253:-
“Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him, it is not easy to imagine the circumstance which would justify departure from a substantial immediate custodial sentence for rape and I can only express the view that they would probably be wholly exceptional.”
While as already emphasized, this is not a rape case, the learned trial judge in the course of the sentencing hearing expressed himself satisfied that the respondent endeavoured to rape his victim and that the only reason that rape did not occur was because she successfully resisted. One might perhaps add that the amount of alcohol consumed by the accused undoubtedly impaired the ability of the respondent to actually rape his victim. Nonetheless, it appears to this court that the observations of the former Chief Justice are apposite to cases such as that under consideration in the present case.
The court would be strongly of the view that the payment of money cannot, of itself, be viewed as an “exceptional circumstance”. This issue was recently considered by this court in The People (D.P.P.) v. C. (unreported, 18th February, 2002). In that case, the same learned trial judge (Carney J.) had dealt with the issue of compensation offered or paid to the victim of a sexual assault by the perpetrator. In the course of passing sentence in that case the learned trial judge stated:-

“My experience over 35 years in the practice of criminal law is that a compensation sentence has never been mixed with a custodial sentence and the Act gives me express statutory jurisdiction to follow that long time practice in the Irish Courts and accordingly in the light of the compensation which has been paid and which has been accepted, I conditionally suspend the sentence. I want to make it clear that I would not have adopted this course had I not been satisfied that it was fully present in the mind of the victim that in the event of the compensation being accepted that the probabilities were that the matter would be dealt with non-custodially.”
However, despite the reference by Carney J. in that case to an “established jurisprudence” which would justify him in adopting the course he did, Murray J. (as he then was) in D.P.P. v. C noted (at p.6):-
“Even though such a practice may very well have been extant in some courts in respect of certain offences, the court is not at all satisfied that it has been a universal practice of the courts to apply such a principle that would exclude the imposition of a custodial sentence as a matter of principle or practice in all cases where compensation has been offered and accepted by the victim.
Indeed, in enacting s.6(1) of the 1993 Act, the Oireachtas clearly intended that a sentencing court should have discretion when it makes an order requiring compensation to be paid by a convicted person to a victim that it be in addition to or instead of a custodial sentence and the Oireachtas conferred such a discretion on the court. The court feels that this is probably no more than to clarify the existing law as it always has been. It is axiomatic to say that in imposing a sentence the sentencing court must take into account all the relevant circumstances of the particular case. As Barron J. said in D.P.P. v. McCormack (unreported, 2000):-

‘Each case must depend on 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 the accused.’
Of course there are, and it is not necessary for this court to go into them exhaustively, other factors which are relevant to the sentencing process and which are daily taken into account by a sentencing court, such as the gravity of the offence, the previous record of the accused, the impact of the offence upon a victim, the prospect of rehabilitation and the need to deter the commission of such offences or crimes generally. All of these are factors which are taken into account and the payment of compensation is just one of those factors to be taken into account. It has never been, as far as this court is aware, a principle that a custodial sentence is to be excluded where compensation has been paid, nor has it ever been considered as an appropriate way to approach sentencing in this court and this court holds that it is a mitigating factor but only one of several and does not and can not in practice or in principle always preclude the imposition of a custodial sentence where that is otherwise the appropriate sentence to be imposed.”
Later in the same judgment, the Court of Criminal Appeal expressly stated that the attitude of the victim to compensation was not a relevant factor in this context and that the primary purpose of s.6 of the 1993 Act is to enable the court to impose an order directing the payment of compensation where it considers it appropriate “even against the wishes of an accused or convicted person”.
A number of English authorities were briefly opened by counsel for the applicant in the course of this hearing to suggest that compensation could be directed to be paid even where a custodial sentence is being imposed, but the court is quite satisfied that it need look no further than the judgment just cited to obtain all the guidance it requires to resolve the issues before this court. The court is quite satisfied that there is no jurisprudence, principle or practice which renders the payment of compensation to the victim of a sexual assault inconsistent with the imposition of a custodial sentence. Indeed, any such supposed practice conflicts with and contradicts the express wording of s.6 of the Criminal Justice Act, 1993, which states that any direction to pay compensation may be “instead of or in addition to dealing with him in any other way.”

This court agrees with the submissions made by counsel on behalf of the applicant and would be strongly of the view that victims in circumstances of this nature should not be drawn into any sort of pro-active role in determining or negotiating the amount of any compensation which an accused person may offer with a view to mitigating sentence. The extent of the victim’s involvement should be either to indicate a willingness to accept or refuse any sum of compensation that may be offered. Thereafter, it is entirely a matter for the court to determine the appropriate sentence having regard to all the multiple considerations which must be borne in mind in this context, including any payment of compensation offered or made. It is inappropriate in the view of the court to draw the victim in any way into the decision as to the amount of sentence.

While noting the argument of counsel for the respondent that no objection was taken on behalf of the Director to the proposed course of action adopted by the learned trial judge on this issue, it is quite clear from a perusal of the transcript that the learned trial judge had in his own mind the view that there was a clear and settled practice in this regard, namely, to impose a non-custodial sentence in any case where the victim was prepared to accept a sum by way of compensation. The victim had further been informed or advised that a likely consequence of such acceptance was the imposition of a non-custodial sentence. The court views the overall approach of the learned trial judge to sentence in this case as mistaken and will hold that there was an error of principle in the manner in which sentence was imposed, such as to require this court to consider what the appropriate sentence should have been, due credit being given for the payment made of €15,000.

Despite the serious nature of this aggravated assault, the court is of the view that this case comes within the category of exceptional cases noted in The People (D.P.P.) v. NY [2002] 4 I.R. 309. In that particular case, the exceptional circumstances identified included the accused’s early remorse for his rape offence and his exceptionally honest acceptance of responsibility, including his plea of guilty and his general good character. Furthermore, as in the instant case, the accused was going to bear the stigma of being certified as a sex offender under the Sex Offenders Act, 2001. He had already served 7 months in prison, a factor which in that case persuaded the Court of Criminal Appeal to suspend the balance of the 3 year sentence originally imposed.

In the instant case, the court is satisfied that the events of the night in question were quite exceptional and that the exposure of the respondent to large amounts of alcohol and displays of lap-dancing in a nightclub in Dundalk triggered an episode which was quite out of keeping with the character of the respondent. He was at the time a married man with a young child who had never been in any sort of trouble with the law before. He was apprehended by the gardai within 30 minutes of the offence and immediately faced-up to his responsibilities and confessed his guilt. He made a full statement following his arrest in Dundalk Garda Station. He has made a full apology to his victim for the horrifying ordeal to which he subjected her. While his victim undoubtedly believed she would be raped, the evidence on the sentencing hearing was that there had been no penetration, although the victim did have some bruises and was undoubtedly severely traumatized by her experience.

Since the time of the offence, the respondent has given up alcohol completely, notwithstanding which his marriage has apparently collapsed because of the ramifications of this assault. For the purpose of raising the necessary amount to pay compensation, he sold off his herd of cattle to raise the sum offered in compensation. The victim did of her own volition freely accept this compensation which is undoubtedly a factor which the court can, and must, take into account in deciding what the appropriate sentence should be. In the view of the court, the respondent is a good prospect for rehabilitation and is extremely unlikely to reoffend for all the reasons just described.

Furthermore, he has had this hearing hanging over him for a period of almost 3 years. In circumstances where the respondent had been led to believe that a non-custodial sentence would be imposed and in circumstances where the victim indicated a willingness to accept the sum offered, the court would be of the view that fairness would require that a custodial sentence only be imposed where there had been an actual rape or some other major aggravating factor.

In the quite exceptional circumstances that obtain in this case, the court is of the view that, although the learned trial judge erred in principle in the manner in which he approached sentence, the sentence which he actually imposed was appropriate and will accordingly refuse the application.

 

McCabe -v- Ireland & Ors

 

[2014] IEHC 435 (30 September 2014)

Neutral Citation: [2014] IEHC 435

THE HIGH COURT
[2014 No. 5652P]

 

BETWEEN

DAMIAN McCABE
PLAINTIFF
AND
IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS
AND
DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

JUDGMENT of Mr. Justice Gerard Hogan delivered the 30th day of September, 2014
1. Where an accused receives a suspended sentence from the Circuit Court on appeal from the District Court and that sentence is later re-activated following a conviction for a subsequent offence, is he or she constitutionally entitled to appeal against the decision to re­ activate that sentence? This is essentially the issue which is presented in these proceedings in which the plaintiff has challenged the constitutionality of key portions of s. 99 of the Criminal Justice Act 2006 (as amended) (“the 2006 Act”).

2. The plaintiff in these proceedings was originally convicted by the District Court on 24th June, 2013, of the offence of driving a motorcycle without insurance. He received a five months prison sentence in the District Court. Mr. McCabe appealed that sentence to the Circuit Court. On 29th October, 2013, the sentence was increased to six months, but, critically, it was suspended in its entirety for two years. Having regard to the scheme posited by s.99 of the 2006 Act it is accepted that the Circuit Court is now the first court for this purpose, i.e., it was the Circuit Court (albeit sitting in its appellate capacity when hearing an appeal from the District Court) which imposed the suspended sentence.

3. The plaintiff was, however, subsequently convicted in the District Court on 26th May, 2014, of an offence under s. 6(1) of the Criminal Justice (Public Order) Act 1994. That Court then remanded the applicant back to the Circuit Court in accordance with s. 99(9) of the 2006 Act. On the following day the Circuit Court then revoked the suspended sentence with immediate effect, so that the applicant commenced to serve his prison sentence of six months in relation to the original no insurance offence. It is pursuant to this sentence that the applicant is now in custody. Sentencing on the second charge has now been adjourned by the District Court pending the outcome of this and associated legal challenges.

4. The plaintiff originally sought to challenge the legality of his detention on a range of non-constitutional grounds in Article 40.4.2 proceedings. I rejected that challenge in a judgment delivered on 3rd June, 2014: see McCabe v. Governor of Mountjoy Prison [2014] IEHC 309. While there was some debate as to whether the plaintiffs constitutional challenge should be heard in those proceedings or whether it might not be better to have separate plenary proceedings with pleadings, it was ultimately agreed that the plaintiff should be at liberty on bail in the Article 40.4.2 proceedings pending the outcome of this constitutional challenge in these separate plenary proceedings.

5. As I observed in the first judgment, the question of the re-activation of suspended sentences in the manner envisaged by s. 99 of the 2006 Act has not been without its difficulties. The Oireachtas has indeed intended to address some of these problems of interpretation and application by two further amendments of the 2006 Act, namely, s. 60(1)(a) of the Criminal Justice Act 2007 (“the 2007 Act”) and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009 (“the 2009 Act”).

6. The scheme envisaged by s. 99 of the 2006 Act is clear enough. Section 99(9)(as amended by s. 60(a) of the 2007 Act) envisages that where an accused has been “convicted of an offence” for which he has received a suspended sentence and he subsequently commits a further offence during the currency of that suspended sentence, the court (which I shall term for ease of reference “the second court”) before which proceedings for the second offence are brought “shall before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order”.

7. It should be noted that, as originally enacted, s. 99(10) provided that the second court should impose sentence prior to sending the matter back to the original court for consideration in relation to the suspended sentence. Following the change effected by the 2007 Act, the second court is now required to remit the matter to the first court (i.e., the court which originally imposed the suspended sentence) prior to imposing sentence. Section 99(10) provides that the court to which the accused has been remanded shall revoke the suspension of the sentence “unless it considers that the revocation of that order would be unjust in all the circumstances of the case.”

8. Section 99(12) further provides that:

“Where an order under subsection 1 is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction or, or sentence imposed on, a person for an offence by the court that revoked the order.”
9. The dilemma which was presented for the plaintiff was that as the suspended sentence in his case was imposed by the Circuit Court, the decision to re-activate that sentence was taken by that Court. The difficulty, however, is that in summary prosecutions, the decision of the Circuit Court on appeal is final and unappealable. There is, of course, a statutory right of appeal from the Circuit Court to the Court of Criminal Appeal, but this is in respect of prosecutions on indictment only: see s. 63 of the Courts of Justice Act 1924 and s. 31 of the Criminal Procedure Act 2010.
10. Against the background, it is agreed that the first question, therefore, which must be considered is whether the Constitution requires the existence of a right of appeal against the re-activation of a suspended sentence by the Circuit Court when it is agreed that such an appeal would lie had but the suspended sentence been imposed in the first instance by the District Court.
Does the Constitution require the existence of a right of appeal in these circumstances?
11. The plaintiff advances two fundamental arguments in support of his contention that the Constitution requires the existence of a right of appeal. First, he says that he has such a right by virtue of Article 34.3.4 of the Constitution which provides:

“The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law.”
12. Second, he argues that a failure to provide a right of appeal against the re-activation of the suspended sentence when that suspended sentence was itself imposed by the Circuit Court on appeal when a right of appeal against the re-activation of the sentence is provided when the suspended sentence was originally imposed by the District Court would be fundamentally arbitrary and contrary to the equality guarantee in Article 40.1.
13. I propose now to deal with these arguments in reverse order.
A right of appeal and equality before the law
14. It is clear that, so far as the plaintiff is concerned, the fact that the suspended sentence was imposed by the Circuit Court rather than the District Court is a purely accidental factor which should be immaterial in any consideration of whether the decision to re-activate that sentence should itself be capable of being appealed. If, then, the plaintiff enjoys no right of appeal against the re-activation of the sentence, it might be asked why he should be placed at a disadvantage by reason of the fact that he was obliged in the first place to appeal to the Circuit Court in order to ensure that the sentence was actually suspended? If, of course, that suspended sentence had been imposed by the District Court in the first instance, then, upon re-activation of that sentence by the District Court, that decision (i.e., the decision to re­ activate) could in turn have been appealed to the Circuit Court.

15. It must also be recalled that the policy expressed by the Oireachtas in s. 99(12) is that the re-activation of every suspended sentence should be capable of being appealed to a higher court. In these circumstances, it is not possible to discern any possible justification for the radically different treatment of persons whose suspended sentences for minor offences have been re-activated by the Circuit Court as distinct from the District Court. The equal treatment of similarly situated persons within the criminal justice system is at the heart of the concept of equality before the law which, as the language of that provision makes clear, is one of the fundamental objectives of Article 40.1: see, e.g., Cox v. Ireland [1992] 2 I.R. 305, SM v. Ireland (No.2) [2007] IEHC 280, [2007] 4 IR 369, BG v. Ireland (No.2) [2011] IEHC 445, [2011] 3 IR 748 and Byrne v. Director of Oberstown School [2013] IEHC 562, [2014] 1 I.L.R.M. 346. This is especially so given that the fundamentally different treatment with regard to sentencing which would then obtain would so greatly impact on the core constitutional right to liberty under Article 40.4.1.

16. In this context it must also be stressed that s. 99(10) does not provide for the automatic re-activation of a particular sentence, since it recognises that there may be circumstances where the re-activation of a suspended sentence might be unjust. This is precisely why the right of appeal provided for by s. 99(12) in respect of the re-activation of a sentence is of such vital importance.

17. In these circumstances, the denial of the right of appeal to one category of litigant simply because of the essentially accidental fact that the suspended sentence which has now been re-activated was imposed on appeal by the Circuit Court rather than at first instance by the District Court has the inherent capacity to work a considerable injustice and unfairness. I say “essentially accidental” advisedly, because the question of whether an accused has the right of appeal against the re-activation of a sentence should not depend on whether the original sentence was imposed at first instance or whether it was imposed following an appeal to the Circuit Court.

18. This conclusion is, moreover, re-inforced by a consideration of the Supreme Court’s judgment in The People v. Foley [2014] IESC 2. In that case the accused had originally received a sentence of 8 years’ imprisonment, the entirety of which was suspended by the trial judge. Following an undue leniency appeal by the Director of Public Prosecutions to the Court of Criminal Appeal, that Court varied the sentence by suspending only five of the eight years. When the accused committed further offences in breach of the conditions attaching to the suspended sentence, the issue arose as to what the appropriate court which should determine the re-activation issue actually was: was it the Circuit Court or was it the Court of Criminal Appeal?

19. The Supreme Court held that the re-activation issue should be determined by the Court of Criminal Appeal, since it was that Court which had effectively set aside the decision of the Circuit Court and replaced it with what Denham C.J. described as a “new sentence.” It followed that a right of appeal existed from the re-activation decision of that Court to the Supreme Court, albeit under the limited conditions contained in s. 29 of the Courts of Justice Act 1924. Critically, however, the Supreme Court rejected the argument that this constituted an unfair discrimination as between different categories of appeals, whether appeals against severity or appeals against undue leniency. As Denham C.J. observed:

“In fact…convicted persons in both such appeals, namely, those under s. 2 of the Criminal Procedure Act 1993 [undue leniency] and s. 3 of the Criminal Procedure Act 1993 [severity] are subject to a similar power of the [Court of Criminal Appeal] to quash the sentence of the trial judge and to impose a new sentence. Thus, I would dismiss this ground of appeal [unfair discrimination] also.”
20. The clear implication from this passage, of course, is that had matters been otherwise, Article 40.1 would have been breached.
Conclusions on the Article 40.1 issue
21. Given that in the present case the significantly differing treatment of otherwise similarly situated accused so far rights of appeal are concerned is incapable of objective justification- and, let it be recalled, no such justification has really been advanced – the conclusion that such a state of affairs plainly offends the guarantee of equality before the law in Article 40.1 is, accordingly, inescapable. We can consider presently the implications of that particular conclusion.
Whether Article 34.3.4 requires the existence of a right of appeal?
22. As the Circuit Court is a court of local and limited jurisdiction, it is plain that Article 34.3.4 is, in principle, at least applicable to a decision to re-activate a sentence. Counsel for the defendants, Mr. Barron S.C., argued that the decision to re-activate a suspended sentence was in this instance no more than the exercise of a statutory power which was ancillary to the pre-existing appellate jurisdiction. In effect, therefore, the argument was that this decision was simply part and parcel of the appellate jurisdiction which had already been exercised when Mr. McCabe persuaded the Circuit Court to suspend the sentence on appeal from the District Court.

23. While this argument was attractively put, I do not think that this, with respect, can be regarded as a realistic analysis of what actually occurred in the Circuit Court. Certainly, the decision to re-activate the sentence is treated by s. 99(10) as an autonomous, free standing exercise of a new jurisdiction, requiring the application for the first time of separate statutory tests, necessitated in turn by the presence of new facts which are themselves the basis on which this jurisdiction was to be exercised. Any other conclusion is, in any event, contra­ indicated by the very wording of s. 99(12) itself which creates a right of appeal from the decision to re-activate the suspended sentence. The language, structure and form of this sub­ section necessarily pre-supposes that the decision to re-activate is a decision taken at first instance, even if the court which exercised that re-activating jurisdiction was itself originally exercising an appellate jurisdiction when the decision to impose the suspended sentence first came before it. This is further underscored by the comments of Denham C.J. in Foley which strongly support the view that the re-activation of the suspended sentence pursuant to s. 99(10) represents a new exercise of a statutory jurisdiction.

24. Next, it was argued that there is in fact an appeal from the decision of the Circuit Court in that s. 16 of the Courts of Justice Act 1947 allows for a case to be stated by the Circuit Court to the Supreme Court. That section provides in material part as follows:

“A Circuit Judge, may, if an application in that behalf is made by any party to any matter…pending before him, refer, on such terms on such terms as to costs or otherwise as he thinks fit, any question of law arising in such matter to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgment or order in the matter pending the determination of such case stated.”
25. It will be seen that s. 16 of the 1947 Act provides for a case stated procedure and not for a right of appeal. The ultimate decision continues to rest with the judge who made the reference to the Supreme Court, namely, the Circuit Court judge. Section 16 cannot thus be regarded as an “appeal” within the meaning of Article 34.3.4, which necessarily implies that there will be an independent determination of the case by a higher court, even if the scope of any such appeal is itself subject to conditions imposed by law.
26. Turning now to the construction of Article 34.3.4 itself, is clear from the judgment of Finlay J. in The State (Hunt) v. O’Donovan [1975] I.R. 39 that the right of appeal envisaged by Article 34.3.4 is one which requires statutory vesture. It is equally clear from that judgment that Article 34.3.4 does not contemplate a universal right of appeal in all cases. As Finlay J. observed ([1975] I.R. 39, 48):

“I have no difficulty in interpreting [Article 34.3.4] as prohibiting the constitution of a court of local and limited jurisdiction from which there was no appeal at all; but there is a very large gap between that interpretation and one which excludes the right of the law to determine from which precise decision an appeal will lie.”
27. In Hunt the applicant had pleaded guilty to the commission of an indictable offence in the District Court and in accordance with the provisions of s. 13 of the Criminal Procedure Act 1967 he was sent forward to the Circuit Court for sentence. As the law then stood, there was no right of appeal against the imposition of a sentence by the Circuit Court following such a plea of guilty in the District Court, although, as Finlay J. pointed out, had the accused withdrawn the plea before the Circuit Court and was subsequently found guilty, he would have had a right of appeal against sentence in such circumstances. (The right of appeal against sentence was in fact subsequently restored by s. 1 of the Criminal Procedure (Amendment) Act 1973).
28. In the light of his finding that Article 34.4.3 did not confer a universal right of appeal, Finlay J. concluded that the legislation was not unconstitutional by reason of an incompatibility with Article 34.3.4. Finlay J. also went to dismiss the argument that the 1967 Act thereby violated Article 40.1 ([1975] I.R. 35 at 50-51):

“A person can never be dealt with under that section unless he so wishes. There is no moral or legal duty on a person, when charged with an indictable offence before the District Court, to signify his desire to plead guilty to that charge. Unless he does so, the provisions of s. 13 of the Act of 1967 never come into operation. Even after he has been sent forward by the District Court on a plea of guilty (if he makes one), the accused having been sentenced by the Circuit Court must be asked if he wishes to withdraw that plea; if he does withdraw his plea he is indicted and to that indictment he may plead guilty or not guilty and, if sentenced, he has a statutory right of appeal against that sentence. However, to take a hypothetical case, each of two persons might be charged with the same type of crime but one of them might be sent forward for sentence on his plea of guilty which does not withdraw while the other might be convicted, or plead guilty on indictment; in such circumstances it is undoubtedly true that one had the right of appeal against severity of sentence while the other has not that right. I must ask myself whether this result, on the principles laid down in the cases to which I have referred, constitutes an invidious discrimination or a failure to protect adequately the rights of the individual.
The person who has been sent forward for sentence on his plea has the opportunity to withdraw that plea up to the very last moment; in addition such person is sentenced, after due submission in evidence, by a constitutional court with an independent judge subject to legal maximum standards as to the penalty he may impose. In these circumstances I do not consider that these provisions are repugnant to either s. 1 of Article 40 or s. 3 of that Article of the Constitution.

It is important to note that the choice to which I have referred is not an illusory one. Practitioners are well accustomed to using an unequivocal admission of an offence as a plea in leniency, and it often succeeds. Furthermore, there is a brevity in speed in the procedure under s. 13(2)(b) of the Act of 1967 which may constitute an advantage to an accused person. Therefore, I refuse these applications.”

29. This passage invites a number of comments. First, one might respectfully doubt whether this analysis of the proper scope of Article 40.1 would be followed today. In the early case-law dealing with Article 40.1 the term “invidious discrimination” seems to have been borrowed from the US case-law dealing with the equal protection clause of the 14th Amendment. The US jurisprudence had been developed in a context where the US Supreme Court frequently encountered legislation which was “invidiously” discriminatory in this sense in that there was legislative discrimination on the basis of race or colour. One would be hard pressed to identify any legislation enacted by the Oireachtas which was “invidious” in this particular sense. The scope of Article 40.1 is, however, far broader than this and it is perhaps for this reason that the Supreme Court has subsequently observed that the use of this term (“invidious discrimination”) “in discussing Article 40.1 is more likely to mislead than to help”: see Murphy v. Attorney General [1982] I.R. 241, 286, per Kenny J.
30. Second, as O’Donnell J. noted in his judgment in Murphy v. Ireland [2014] IESC 19, [2014] 1 I.L.R.M. 457, 481, it is clear that the modem case-law on Article 40.1 endeavours to avoid any formalistic analysis such as might have been a feature of the equality jurisprudence of the 1970s and 1980s. The emphasis is instead rather on ensuring that the substance of the guarantee is upheld and, in particular, that any “significant differentiation between citizens….may still fall foul of the provision if they cannot be justified”: see [2014] 1 I.L.R.M. 457, 481-482, per O’Donnell J.

31. While it is true that, returning to the precise question at issue in Hunt, there are differences between the case of the accused who elects to plead guilty in the District Court and who is sent forward for sentence on the one hand and the accused who either pleads guilty following a return for trial in the Circuit Court or who is found guilty following a trial on indictment on the other, it is nonetheless hard to see how those differences could justify such a strikingly different treatment in terms of appellate remedies regarding sentence. Viewed through the prism of the modern Article 40.1 case-law, I very much doubt whether the actual result in Hunt would nowadays be regarded as correct. Indeed, it may be significant that in Todd v. Murphy [1999] 2 IR 1, Geoghegan J. already said as much.

32. In any event, so far as the present case is concerned, I do not think that the fact that an accused found himself obliged to appeal to the Circuit Court in order to secure a suspended sentence in the first place should be the critical fact which could justify the failure to provide for a right of appeal from the decision to re-activate that sentence.

33. With regard to the interpretation of Article 34.3.4, I agree with Finlay J. that this provision does not confer or guarantee a universal right of appeal. This point was also illustrated by the decision of Geoghegan J. in Todd v. Murphy [1999] 2 IR 1. In that case the applicant had challenged the validity of legislation which provided that the decision of the Circuit Court not to transfer a trial from one venue to another was unappealable. Geoghegan J. expressed approval for the general principles enunciated by Finlay J. in Hunt, without “necessarily endorsing the particular application of that principle” in that case. He went on to say that it was clearly open to the Oireachtas to bar an appeal from a preliminary decision of this kind, adding ([1999] 2 IR 1, 4):

“It would seem to me to be peculiarly in the interests of a fair and efficient administration of justice that there should not be a right of appeal from a decision of a trial judge as to the venue of a trial made before the trial commences. Such an appeal is likely to delay the proceedings and is open to much abuse.”
34. The right of appeal is subject to “law”, but it is now clear- in a way which was not perhaps quite the case in 1972 at the time when Hunt was decided – that where this phrase appears in the Constitution, it does not simply refer to positive law only in the sense of a statute enacted by the Oireachtas. It is rather the case that any such “law” as is envisaged by Article 34.3.4 must comply with the principles subsequently articulated by Henchy J. in King v. Attorney General [1981] I.R. 233, 257, so that the law “must [not] ignore the fundamental norms of the legal order postulated by the Constitution.” This principle was recently re­ affirmed by O’Donnell J. in Murphy in the context of Article 38.3.1 and the establishment “by law” of the Special Criminal Court. The application of the King principle meant that the question in that case thereafter became whether the provisions of the Offences against the State Act 1939 providing for the establishment of that Court were “compatible with the dictates of fairness postulated by the Constitution.”
35. If the matter is looked at this way it may be said that the existence of a right of appeal against a purely procedural ruling of a trial judge in matters relating to venue is not intrinsic to the fundamental norms postulated by the Constitution and nor is it central to the criminal justice system. As Geoghegan J. pointed out, the existence of a right of appeal against decisions in respect of venue would be likely to prove disruptive to the smooth and orderly administration of justice.

36. The right of appeal of an accused against sentence is an entirely different matter. As a matter of history, a right of appeal on the part of the accused against sentence has been a fundamental feature of the criminal justice system since the Constitution was first enacted. Indeed, leaving aside for a moment the issues raised in these proceedings, it might be said that the only example since 1937 of where an accused was not afforded a right of appeal against sentence was in the interval between the enactment of the Criminal Procedure Act 1967 and the Criminal Procedure (Amendment) Act 1973, i.e., the issue which formed the background to the issue raised in Hunt. Even then it might be said that this particular omission was an unintended by-product of the manner in which the 1967 Act had been drafted, rather than a deliberate policy on the part of the Oireachtas. To that extent, therefore, this legislative omission seems to have been regarded as something of an anomaly and the omission was, in any event, swiftly rectified by the Oireachtas once the problem came to light.

37. In view of the centrality of sentencing to the criminal justice system and given that the protection of liberty, the trial of offences in due course of law and the existence of a right of appeal are themselves all fundamental norms expressly safeguarded by the Constitution, it is difficult to see how a law which did not provide for a right of appeal against sentence imposed by a court of local and limited jurisdiction could be said to be a law which respected those fundamental norms, so that it was a “law” in the sense identified by Henchy J. in King and by O’Donnell J. in Murphy (2014). It is, perhaps, unnecessary to decide whether Article 34.3.4 requires the existence of a right of appeal against sentence on the part of an accused in every single case. It is, however, to say that the denial of a right of appeal against a sentence imposed by a court of local and limited jurisdiction is something which, at the very least, requires to be objectively justified.

38. For all of these reasons, I do not think that either aspects of the reasoning nor the actual decision in Hunt would be followed today. In arriving at this view, I do not overlook the fact that the Supreme Court dismissed an appeal from the decision of Finlay J.: see [1975] I.R. 39, 53. As no reasons were given by that Court in respect of the single judgment delivered on the constitutional question, its precedential value is difficult to discern. But even if – which is by no means clear – that decision is regarded as having endorsed the reasoning of Finlay J. in this Court, the decision in Hunt could still no longer hold as an authority because the judgment is based on a doctrinal analysis of Article 34.3.4 and Article 40.1 which has since been overtaken by a series of much later Supreme Court decisions.
Conclusions on the Article 34.3.4 issue
39. Can it be said that such objective justification is present here? For the reasons already stated with regard to the equality argument in Article 40.1, one must doubt whether such justification is or could be present. After all, to return to a point already made in that latter context, the underlying policy expressed ins. 99(12) is that the re-activation of a suspended sentence following a further conviction is not automatic. Furthermore, as is apparent from the language of s. 99(12), the Oireachtas appears to have contemplated that there should be a universal right of appeal against sentence.

40. In summary, therefore, for the reasons I have already stated, it follows that the legislative failure to provide an accused a right of appeal against the re-activation of a suspended sentence imposed by the Circuit Court amounts to a breach of Article 40.1 and Article 34.3.4.
What relief is available to the plaintiff!
41. In these proceedings the plaintiff has claimed a declaration that s. 99 is unconstitutional. It is true that in one sense the plaintiff is affected by the operation of s. 99(12) in that it is pursuant to those provisions that the suspended sentence was thereafter activated. But this is not the real source of his complaint, since the objection to s. 99 is not really to that which it contains, but rather in respect of what it does not contain. The two separate findings of unconstitutionality (in respect of both Article 34.3.4 and Article 40.1) relate to a legislative failure to provide a right of appeal for an accused person whose sentence has been re-activated.

42. In these circumstances, given that the identified unconstitutionality relates to a legislative lacuna, an order declaring the section to be unconstitutional would generally be inappropriate. Just as I observed in BG v. Ireland (No.2) [2011] IEHC 445, [2011] 3 IR 748, 767 (where a similar unconstitutional lacuna had come to light), a finding of unconstitutionality would serve no real purpose in the present case “other than a Samson-like collapsing of the legislative pillars which gave rise to the unconstitutionality in the first instance.” At the same time, the court must fashion an effective remedy to address the legislative lacuna if it is to be faithful to the constitutional command contained in Article 40.3.1 to “defend and vindicate the personal rights of the citizen”, so far as it is practicable to do so. It is in these particular circumstances that the court “will feel obliged to fashion its own remedy”: see McDonnell v. Ireland [1998] 1 I.R. 134, 148, per Barrington J.

43. Similar views were expressed by Murray C.J. in Carmody v. Minister for Justice [2009] IESC 71, [2010] 1 IR 635, 668- where an unconstitutional legislative lacuna of this kind has been identified- to the effect that in this type of case the court enjoys a constitutional jurisdiction “to grant such remedy as it considers necessary to vindicate the right concerned.” In that case the applicant contended that the fact that he had no right to apply for criminal legal aid in a District Court trial which would provide him with representation by counsel as well as a solicitor and therefore no right to be granted such legal aid where the essential interests of justice so require. The Supreme Court held while that the Criminal Justice (Legal Aid) Act 1962 was not unconstitutional, the failure to make provision in suitable cases for the present of counsel at a criminal trial was, objectively, a breach of the accused’s entitlement under Article 38.1 to trial in due course of law. Viewed thus, Carmody is really a classic example of an unconstitutional lacuna where the invalidation of the underlying legislation is neither an appropriate or a necessary remedy.

44. What, then, should the remedy in the present case actually be? In Byrne v. Director of Oberstown School [2013] IEHC 562, [2014] 1 I.L.R.M. 346 I noted that that, in theory, at any rate, “once an unconstitutional omission is judicially identified then the solution generally best lies with the legislative branch” and that since the constitutional command related to equality before the law ([2014] 1 I.L.R.M. 346, 358):

“in the wake of such a judicial determination the choice rests with the Oireachtas to decide whether to level up or level down so that the precepts of Article 40.1 are thereby satisfied.”
45. I continued by noting that in practice matters may not be quite that simple ([2014] 1 I.L.R.M. 346 at 358-359):
“What, then, is the situation in the present case? In theory, perhaps, the Oireachtas and the Minister could bring about equality by abolishing the remission regime for all offenders. In practice, however, this would be all but impossible, certainly insofar as such an equalising measure purported to operate retroactively by removing the existing legal entitlements and expectations of serving prisoners to remission. Such a retroactive measure would be open to a host of objections and given that the entire criminal justice system has been heretofore premised on the understanding that (the special cases of murder and persons imprisoned for contempt of court aside) all other prisoners are eligible for and have an entitlement to remission….one may doubt whether the retroactive removal of remission in this fashion would survive constitutional scrutiny.
Just as in Carmody and SM, therefore, there is no realistic option open other than to find that the failure to provide for the same remission regime at Oberstown as applies to offenders detained at St. Patrick’s Institution violates the precept of equality in Article 40.1. This means in turn that the failure to afford the applicant the same remission entitlements as other young offenders violates his constitutional rights.

. . ..In these circumstances it must be adjudged that by reason of the continued application to him of this unconstitutional legislative omission, the applicant’s continued detention at Oberstown is not in accordance with law. In accordance, therefore, with the requirements of Article 40.4.2 of the Constitution, it follows that I must direct his release from that custody.”

46. The present case is different again. Even though I have found that the denial to the plaintiff of a right of appeal is a violation of both Article 34.3.4 and Article 40.1, the parameters of such a right of appeal are entirely a matter of legislative policy which is committed to the Oireachtas alone. Specifically, the unconstitutionality cannot, perhaps, be as readily cured in the same manner as happened in cases such as SM (No.2) and BG (No.2). These were both sentencing cases where specific classes of defendants were unconstitutionally exposed to the prospect of a higher maximum sentence than other similarly situated defendants. In both cases it was held that the legislative omission could be cured by declarations which ensured that there was only one uniform maximum sentence.
47. In the present case, the equivalent remedy might be to create a right of appeal for the accused persons in the same position as the plaintiff. In that hypothetical scenario, all accused persons would enjoy equivalent rights of appeal following the re-activation of suspended sentences which had been imposed in respect of summary offences, thus satisfying the requirements of both Article 34.3.4 and Article 40.1. That, however, is a remedy which lies far beyond the judicial capacity to effectuate or to create. It would be a matter for the Oireachtas to determine by law how such a right of appeal might be exercised, not least the identity and composition of the court which might be assigned jurisdiction to hear such an appeal.

48. In Byrne the unconstitutional discrimination consisted of the failure to apply the same type of sentence remission to similarly situated categories of young offenders depending on the identity of the institution in which they were detained. In those circumstances, I found that the only practical way of curing this unconstitutionality and providing an effective remedy for this violation was to treat the remission rules applicable to offenders detained at St Patrick’s Institution as being also applicable to those detained at Oberstown School.

49. More importantly, a similar solution was devised by the Supreme Court in Carmody where, as we have seen, the lacuna stemmed from the failure of the Criminal Justice (Legal Aid) Act 1962 to allow for the provision of counsel in certain types of cases. On this basis the applicant in that case had claimed that s. 2(1) of the Act was repugnant to the Constitution. Dealing with the question of remedy Murray C.J. stated ([2010] 1 IR 635, 668-670):

“The Court has already determined that the denial of an opportunity to apply for and be granted, where appropriate, such legal aid is a denial of a constitutional right. He is entitled to have that constitutional right vindicated. Article 40.3 of the Constitution imposes on the organs of government of the State the duty to defend and vindicate the personal rights of the citizen……
The Court is satisfied that it would be unjust and contrary to the appellant’s right to a trial “in due course of law” as required by Article 38.1 of the Constitution if the prosecution of the charges brought against him were allowed to proceed while he is denied the right to apply for legal aid to include solicitor and counsel and have that application determined on its merits. To allow a trial to proceed without any possibility of determining whether it was essential to a fair hearing that the defendant be represented by solicitor and counsel would be, in the words of O’Higgins C.J., in [The State (Healy) v. Donoghue [1976] I.R. 325, 351] “to tolerate injustice”.

………..Accordingly the Court will grant a declaration that the appellant has a constitutional right to apply, prior to being tried, for legal aid in the criminal proceedings brought against him in the District Court and to have that application heard and determined on its merits. It will also make an order prohibiting the prosecution from proceeding in respect of the criminal charges referred to in these proceedings unless and until the appellant is afforded that right.”

50. I propose to apply by analogy the solution devised by the Supreme Court in Carmody to the present case. Compliance with the obligations placed on this Court by Article 40.3 to vindicate the constitutional rights of the plaintiff requires that he is nonetheless entitled to a real remedy in order to ensure that these rights are not further infringed.
51. Accordingly, for so long as sentenced persons such as the plaintiff are denied a right of appeal against the re-activation of the sentence for a summary offence by the Circuit Court, the only effective yet practicable remedy which can be devised to ensure that this unconstitutionality is adequately mitigated is to declare that it would be unconstitutional to give effect to the re-activated sentence in the absence of a legally conferred right of appeal.
Conclusions
52. It remains only to summarise my principal conclusions:

53. First, the starkly different treatment of the rights of appeal of convicted persons whose suspended sentence in respect of summary offences was originally imposed by the Circuit Court rather than the District Court is not objectively justifiable and amounts to a breach of the equality guarantee in Article 40.1. This is especially so given that s. 99(12) of the 2006 Act (as amended) pre-supposes that all such offenders will enjoy a right of appeal against the re-activation of such a sentence and as s. 99(10) makes it clear that such re-activation was not intended to operate automatically in every single case.

54. Second, the failure to provide a right of appeal against the re-activation of a suspended sentence by a court of local and limited jurisdiction involves a failure to provide a right of appeal in the manner determined “by law” for the purposes of Article 34.3.4, at least, where, as here, no objective justification for such failure has been supplied. By failing to providing for such a right of appeal, the Oireachtas has failed to comply with fundamental constitutional norms in the sense identified by Henchy J. in King and, more recently, by O’Donnell J. in Murphy.

55. Third, given the unconstitutionality which has been just identified relates not to what is contained ins. 99 of the 2006 Act, but rather to that which it does not contain, it would be both inappropriate and unnecessary to make a formal declaration of unconstitutionality invalidating s. 99 itself.

56. Fourth, the plaintiff is nonetheless entitled to a real remedy to ensure that his constitutional rights are not further infringed. In these circumstances, adapting by analogy the solution devised by the Supreme Court in Carmody in respect of the unconstitutional legislative omission identified in that case, I propose to grant an order declaring that it would be unconstitutional to give effect to the re-activated sentence in the absence of a statutorily conferred right of appeal against the decision of the Circuit Court to re-activate the sentence.

DPP v Kavanagh

[2017] IECA 133
JUDGMENT of the Court delivered on the 2nd day of May 2017 by Mr. Justice Mahon

1. On 6th July 2016 at Dundalk Circuit Criminal Court the respondent pleaded guilty and was convicted of two counts, namely:-

• Possession of a double barrelled sawn off shotgun with intent to commit an indictable offence contrary to s. 27(b)(i) of the Firearms Act 1964 as substituted by s. 60 of the Criminal Justice Act 2006, and amended by s. 39 of the Criminal Justice Act 2007.
• Robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

2. The respondent was sentenced on 21st July 2016 to a term of imprisonment of four years, with the final two years of the sentence suspended on conditions in respect of the first count. Count two was taken into consideration.
3. This is the appellant’s application for a review of sentence pursuant to s. 2 of the Criminal Justice Act 1993 on the grounds that it was unduly lenient.

4. Both counts arose from an incident which occurred on 20th April 2015 at a Mace Store at Clogherhead in Co. Louth. The store included a sub post office. At about 12.30p.m. two individuals entered the premises when there were present three staff members and some customers. Both wore hoods. One carried a sawn off shotgun while the second, the respondent, carried a plastic bag. One of the individuals demanded cash from the staff member in charge of the post office section of the premises. The individual carrying the shotgun used it to strike the glass panel at the post office unit causing it to shatter. The shotgun was also pointed directly at a staff member, Miss Rafferty, and a sum of €2,250 in cash was handed over. On leaving the premises, the raiders were challenged by Det. Gda. Carey who had been sitting outside in an unmarked garda car. He produced his official issue firearm, in response to which the raider carrying the shotgun pointed it directly at him. The man then dropped the shotgun, and he and the respondent, and the driver of the raider’s vehicle, who had remained in the car during the robbery, escaped.

5. The respondent ran towards the back of the premises where he was later apprehended. The raiders’ car was driven at Det. Gda. Carey who was forced to jump out of its way. He was nevertheless struck on the hip and ankle but not injured. The cash was recovered at the scene.

6. The respondent cooperated, to an extent, with the gardaí. He refused to name his fellow robbers. He told the gardaí that the raid had been planned only a couple of hours before hand.

7. The respondent has fifteen previous convictions for a variety of offences including drugs convictions and two for possession of firearms and ammunition in July 2015 for which he received a prison sentence of five years. This offence was committed just three months subsequent to the instant offence.

8. Section 2 of the Criminal Justice Act 1993 provides as follows:-

“2(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this act referred to as the sentencing court) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.”
9. A summary of the grounds on which this application is brought is as follows:-
(i) The failure by the learned sentencing judge to sentence in accordance with the provisions of s. 27B and s. 27C of the Firearms Act 1964, as amended. In particular, it was contended that there was a failure to engage with the requirement of s. 27B(4) which provides for a minimum terms of five years imprisonment unless a sentencing court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it which would render such a minimum term unjust.
(ii) It is submitted that a sentence must be imposed for each offence in respect of which a person is convicted. It is contended that the learned sentencing judge erred in taking into consideration count two, namely robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and ought instead have separately sentenced in relation to that count.

(iii) The learned sentencing judge failed to attach appropriate weight to a number of aggravating factors, including, the planning of the robbery, the wearing of gloves to avoid leaving fingerprints, the contribution to the intimidating conduct within the premises in the course of the robbery, the effect on the victims, the fact that he was part of a common design when the firearm was pointed at Det. Gda. Carey and the fact that a firearm was used, and was used to threaten.

(iv) Undue weight was attached to the respondent’s plea of guilty in that he was effectively caught red handed, and the other mitigating factors.

The firearms offence
10. The relevant provisions of s. 27(B) of the Firearms Act 1967 are as follows:-
“(1) It is an offence for a person to have with him or her a firearm or an imitation firearm, with intent:-

(a) to commit an indictable offence, or
(b) to resist or prevent the arrest of the person or another person,

in either case while the person has the firearm or imitation firearm with him or her.
(2) A person guilty of an offence under this section is liable on conviction on indictment:-

(a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and
(b) at the court’s discretion, to a fine of such amount as the court considers appropriate.

(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006….
(4) Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.

(5) Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appropriate, including:-

(a) whether the person pleaded guilty to the offence and, if so:-
(i) the stage at which the intention to plead guilty was indicated, and
(ii) the circumstances in which the indication was given,

And
(b) whether the person materially assisted in the investigation of the offence.

(6) The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may also have regard, in particular, to:-

(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006…
(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.

(10) Section 27C of this Act applies in relation to proceedings for an offence under this section and any minimum term of imprisonment imposed under subsection (4) or (8) of this section in those proceedings.”

No specific sentence for count two
11. The respondent pleaded guilty to counts one and two, but was only specifically sentenced in relation to count one, the count relating to the possession of the double barrel sawn off shotgun. The maximum sentence for this offence is fourteen years imprisonment. Count two was merely taken into consideration and was not the subject of a separate sentence. The offence in question carries a maximum sentence of life imprisonment.
12. Section 8 of the Criminal Justice Act 1951 provides that:-

“(1) Where a person, on being convicted of an offence, admits himself guilty of any other offence and asks to have it taken into consideration in awarding punishment, the Court may, if the Director of Public Prosecutions consents, take it into consideration accordingly.
(2) If the Court takes an offence into consideration, a note of that fact shall be made and filed with the record of the sentence, and the accused shall not be prosecuted for that offence, unless his conviction is reversed on appeal.”

13. The requirement that the Director must consent before an offence is taken into consideration was inserted by the Criminal Justice (Miscellaneous Provisions) Act 1997.
14. In DPP v. Grey [1986] IR 317 at 328, Griffin J. stated:-

“The purpose of (section 8) is in my opinion clear – to enable the judge, in passing sentence, where offences other than those for which an accused person has been convicted had been committed by him, and were still untried and were admitted by him, to impose a sentence appropriate to the offence of which he was convicted having regard to and taking into account the other offences of which he then admitted his guilt.”
15. In his book Sentencing Law and Practice Prof. O’Malley states, at p. 578:-
“When a person is convicted whether by plea or otherwise, of several offences, he should be sentenced separately for each even if it is intended that some or all of the sentences should run concurrently. It was so held by the Supreme Court in DPP v. Higgins (unreported, Supreme Court, November 22nd 1985), where it appeared that the accused having been convicted of several offences arising from the same incident had been sentenced on one count only with the others taken into consideration. Finlay C.J. described this arrangement as undesirable and unsatisfactory in view of the possibility that the conviction on one of the counts, including perhaps the one in respect of which a definite sentence was imposed, might be set aside or appeal or review. Convictions on other counts would remain intact so it was important to be able to identify the sentences which remained in being.”
16. A similar view was also expressed by the Australian High Court in R v. Pearce [1998] 194 CLR610 at 624.
17. In the instant case the learned sentencing judge decided to take the second count into consideration without first seeking the consent of the appellant, nor was such consent forthcoming. The issue was not raised in any shape or form by either side either before or after sentencing. It is apparent from the transcript that the decision to take the second count into consideration was almost an afterthought on the part of the learned sentencing judge, prompted by prosecution counsel reminding him that there was a second count to be dealt with. The learned sentencing judge responded thus:-

“Oh, yes, two counts, I beg your pardon. In relation to the robbery charge, I’ll take it into consideration.”
18. It is certainly the case that it is common practice that all types of offences are taken into consideration with one or more offences in respect of which specific sentences are handed down. It is not done on the basis that such offences are ignored; rather, they are accounted for within the overall or effective sentence imposed in relation to one or more specific counts. The practice is, if nothing else, a useful means of giving effect to the principles of totality and proportionality. It is a practice often adopted as a way of dealing with minor counts in circumstances where one or more counts of a more serious nature are being dealt with, for example, a count of dangerous driving causing death will frequently be the subject of a specific sentence while accompanying less serious counts such as, for example, leaving the scene of an accident or driving without a driving licence are simply taken into consideration.
19. That said, the court is satisfied, that it is appropriate, and is required by law, that each count of which a person stands convicted should be the subject of a separate and distinct sentence unless the court relates to a minor offence that would ordinarily attract a relatively insignificant penalty. The logic for doing so is well illustrated in the remarks of Finlay C.J. in Higgins (see above). It makes particular sense to do so where serious offences are concerned such as, as in the instant case, the offence of robbery.

20. While the failure on the part of the learned sentencing judge to specifically sentence the respondent in respect of the robbery offence constitutes an error of principle, the court is anxious to emphasise that it was an error made perfectly understandably in circumstances where the issue in question was not brought to his attention.
The sentences under review
21. In the course of his sentencing judgment, the learned sentencing judge described the extent of the respondent’s previous offending as worrying. He considered the respondent to have been 80% cooperative with the gardaí and that his refusal to identify other persons involved was borne out of fear. He also noted that the victims were badly affected by their experience, mentioning specifically Ms. Rafferty who was five months pregnant at the time. He went on to say:-

“…Having had regard to all of the circumstances of this case, I am satisfied that Mr. Kavanagh falls outside the remit of the mandatory provisions of section 27(D) of the Firearms Act (as amended); he never actually held the gun and did cooperate with the gardaí when arrested. In that context, I believe that an imposition .. of a sentence of four years with the last two years suspended for a period of twenty six months …”
22. The principles governing a review of a sentence pursuant to s. 2 of the Criminal Justice Act 1993 are well established. In DPP v. McCormack [2000] 4 I.R. 356 at 359, Barron J. stated:-
“In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save for perhaps in exceptional circumstances have been caused by an obvious error in principle.”
23. It is necessary, therefore in order for a sentence to be deemed unduly lenient, that it be established that there has been a substantial departure from what would have been regarded as an appropriate sentence. Judges are entitled to exercise leniency when imposing sentence, and have a wide discretion as to how they structure a sentence. A sentence is not unduly lenient simply because this court, or individual members of this court, might have imposed a different sentence. It is not sufficient for the appellant to show that a sentence imposed was lenient, or even very lenient; it is necessary to establish that it was unduly lenient.
24. A core criticism of the sentencing judgment in this case is based on the contention that the learned sentencing judge did not adequately engage in “any analysis of those provisions of the Firearms Act 1964… as part of the complex sentencing process”. While he did not deal with the issue in detail or identify any headline sentence before engaging in any discounting process, it is nonetheless the case that the learned sentencing judge did indeed consider whether there were in existence exceptional and specific circumstances which permitted him to impose a sentence less than the mandatory minimum term of five years. Submissions were made to him on the issue by prosecution counsel and a copy of the relevant legislative provisions was handed to the learned sentencing judge for his consideration over the lunch break.

25. The sentencing judgment itself suggests that the various aggravating and mitigating factors were considered prior to imposition of sentence. The learned sentencing judge also referred to the adverse effect on the victims of this crime and the negative effect such offending has on members of the public going about their ordinary business. Ultimately, what has to be considered by the court is whether a sentence of four years, with the last two years suspended was an appropriate sentence for the firearms offence with due regard to the particular circumstances in which the offence was committed and, more particularly, was the sentence not merely lenient, but unduly lenient.
Conclusion
26. It is the court’s view that the sentence was unduly lenient, and outside the wide discretion enjoyed by the learned sentencing judge because of the particularly serious nature of the offences and the circumstances in which it was committed. Even if the learned sentencing judge had imposed a separate and distinct sentence in respect of the second count, and which ought to have been done, the sentence imposed in respect of the first account would remain unduly lenient. The extent of that undue leniency is however more marked because it was a sentence imposed, in effect, on a full facts basis, and included the circumstances in which the robbery was undertaken. The maximum sentence for the first offence was fourteen years imprisonment. While the offence did not fall into the most serious category of this offence in terms of its gravity, it nevertheless must rank well above the half way mark, and with due regard to the respondent’s previous convictions required a sentence of between seven and nine years.

27. The Court will therefore quash the sentence imposed by the learned sentencing judge and will resentence as of the present time. In addition to the mitigating factors known at the time of sentencing, this Court has been provided with a number of certificates of achievement awarded to the respondent since entering custody and which are particularly impressive when considered in their entirety. The Court will therefore impose, in respect of count one a sentence of seven years imprisonment with the final two years suspended on terms similar to those directed by the Circuit Criminal Court.

28. In relation to the second count, and for the reasons already stated, the Court is satisfied that the proper course to have been taken by the learned sentencing judge was to impose a separate and distinct sentence in respect of this offence. This offence carries a maximum sentence of life imprisonment. The particular circumstances in which the offence was committed by the respondent make the offence particularly serious. While it is accepted by the Court that there existed some element of fear on the part of the respondent which contributed to his participation in the robbery, it was nevertheless an incident in which he freely participated. He knew that a shotgun was to be produced for the purposes of terrorising staff and customers, and the use of the shotgun in this manner coupled with his own aggressive behaviour in the course of the robbery serves to emphasise the seriousness of the offence.

29. In respect of the second count, the Court will also impose a sentence of seven years imprisonment with the final two years suspended on similar conditions to those imposed in respect of the first count. Both sentences will be concurrent, and will date from the 21st July 2016.

 

People (DPP) v Lee

 

[2017] IECA 312
JUDGMENT of the Court delivered on the 27th day of November 2017 by
Mr. Justice Hedigan

Introduction
1. This is an appeal against severity of sentence. On the 6th December, 2016, his first appearance before the Circuit Court, the appellant entered a guilty plea to the offence of escaping from lawful custody contrary to common law. He was sentenced on the 15th December, 2016, in Wicklow Circuit Criminal Court, to three years imprisonment. This sentence was backdated to the 19th July, 2016. He is currently detained in Wheatfield Prison.
The circumstances of the offence
2. The appellant had been in lawful custody in Shelton Abbey, since the 13th September, 2015, when he escaped. On the 4th March, 2016, following a check of rooms and extensive search of the lands and premises the appellant could not be found. This was shortly before he was due before the parole board in respect of a sentence he was then serving. In February, 1994 the appellant was convicted of murder in the United Kingdom and sentenced to life with a tariff of 12 years. The offence occurred during a burglary and there were two other co-accused. One was convicted of murder and the other of manslaughter. Being an Irish citizen he was transferred to this jurisdiction on the 12th March, 1998. The co-accused remained in the United Kingdom and had already been released at the time that this offence was committed.

3. The appellant was discovered in the United Kingdom living with his daughter, at an address known to the authorities. He was apprehended on foot of a European Arrest Warrant on the 19th July, 2016. He consented to his surrender back to this jurisdiction.
The appellant’s personal circumstances
4. The appellant was born in 1964. He left school at a young age. He had some experience of scrap dealing and doing other odd jobs. He had some problems with alcohol and drugs.

5. He has an ex-wife, two daughters in their twenties, a granddaughter and a sister in England. His sister was in hospital and this was given as the reason for his absconding. He had sought release to visit but was denied. He had previously been granted three periods of escorted temporary release and complied with the conditions of that release.

6. He had 25 previous convictions including the one for murder. 24 were committed in Ireland between 1981 and 1991. There were nine for burglary, four for theft, four road traffic offences, two bail offences, two trespass and two criminal damage and one escape from custody which was from Shelton Abbey in 1987. A sentence of one month was imposed for that escape.

7. He had been transferred from Wheatfield to Shelton Abbey which was a positive sign in terms of ultimate release. His parole hearing was set for September, 2016. This process of seeking release on licence will now start over from the beginning. Two references were given to the sentencing judge. He was working towards release on licence and having periodic reviews before the parole board.
Sentencing
8. The mitigating factors were his guilty plea, his consent to the European Arrest Warrant execution, his working in the Wheatfield laundry and the governor’s report that he was behaving well in Wheatfield. The aggravating factors were the serious nature of the offence, there was trust between the appellant and management in Shelton Abbey which was abused, the respect and authority situation of being in prison was abused, there was a degree of planning and his previous convictions but they were mostly historical. Regard was also had to the appellant’s personal circumstances.

9. The sentencing judge noted the maximum penalty was life imprisonment and that he was satisfied that this offence was in the middle range. The headline sentence was noted as being five to six years. Considering mitigation and the appellant’s personal circumstances a sentence of three years was imposed to run from the 19th July, 2016.
Appellant’s submissions
10. It is submitted that it was accepted that prior to this offence the appellant’s release on licence would have been in the “relative to near future”. This offence has set back his potential release date on the murder conviction.

11. It is submitted that the sentencing judge erred in law and fact in placing excessive weight on the aggravating factors and in determining the seriousness of the offence to be an aggravating factor. The judge assessed the aggravating factors after it was determined that the offence was in the middle range. In The People (DPP) v. Kelly [2016] IECA 204, in relation to the seriousness of the offence being an aggravating factor, Edwards J. held, at para. 38, that “[t]he mere existence of an ingredient of an offence cannot be regarded as an aggravating factor”. The Court then went on to find that trespass could not be an aggravating factor in the offence of burglary as it was “an express ingredient of the offence”. The Court referred to this as an error of principle. The appellant submits that the sentencing judge erred in considering the offence in and of itself to be an aggravating factor.

12. It is submitted that the sentencing judge erred in fact and law in determining the headline as five or six years before considering mitigation. It is accepted that the approach taken of fixing a headline and then reducing for mitigation was correct. The headline of five to six years was inappropriate for the offence.

13. There are helpful United Kingdom authorities on this to which the Court is referred. In R v. Clarke (1994) 15 Cr. App. R. (S.) 825 the appellant was serving a five year sentence for causing grievous bodily harm when he walked out of prison by pretending to be a visitor. He claimed to have wanted to discuss the custody arrangements for his young son and that he intended to return. He was given a 12 month consecutive sentence which was reduced to six months consecutive on appeal. The Court noted that he had been trusted with visits outside prison, there was no violence or property damage involved and the escape was not premeditated.

14. In R v. Bentley (1996) 1 Cr. App. R. (S.) 88 the appellant was sentenced to 15 months for a pre-planned escape. He maintained that he was being bullied by fellow prisoners and he transfer request had been refused. On appeal the sentence was reduced to nine months. The Court found that it had been too long in light of all the circumstances and his peripheral role.

15. In Attorney General’s Reference No. 4 of 1995 (1996) 1 Cr. App. R. (S.) 356 the Court of Appeal held that the appropriate sentence would have been 15 months consecutive where the offender escaped while in hospital for an operation, remained at large for six months and committed a number of offences during that time.

16. In R v. Coughtrey (1997) 2 Cr, App. R. (S.) 269 the Court held that breaking out of prison is a very serious offence for which a substantial sentence of imprisonment is always to be expected. The appellant and another person burned through a fence then scaled an outer wall. The appellant was serving a life sentence for murder. It was held that it should be a concurrent sentence and of a length as would have been appropriate had the original sentence been determinate. The factors to be taken into account included the nature and circumstances of the crime for which he was in prison, conduct while in prison, method of escape, was there violence used, extensive planning or outside assistance, if and how he surrendered himself and if there was a guilty plea. The Court found seven years to be excessive and substituted it for a sentence of four years.

17. It is submitted that the more recent authorities from that jurisdiction have distinguished between planned escaped and absconding from an open prison. In R v. Purchase [2007] EWCA Crim 1740 nine months consecutive was appropriate where the appellant was serving two years and had been moved to an open prison. He walked out before his release date following the refusal of a request for transfer to be closer to his family. He came to no adverse attention while at large. Calvert-Smith J. held that where a prisoner on his own decides to escape due to personal pressure the sentence should be measured in months. However, where it is a more professional escape with assistance from inside or outside the sentence will be measured in years. That case was determined to be in the former category. The appellant submits that Coughtrey fell into the latter category.

18. In R v. Davies [2004] EWCA Crim 521 the Court determined a consecutive sentence of ten months to be correct. The appellant was serving three and a half years for robbery. He had progressed to an open prison. He simply walked out.

19. In R v. Banks-Nash [2006] EWCA Crim 1211 the appellant walked out of an open prison 11 days before his earliest parole hearing. He was serving five years for conspiracy to supply controlled drugs. It was 188 days before he was returned. He was arrested for shoplifting offences. He received a 12 month consecutive sentence. The Court reduced his sentence to nine months. It was noted that the range on a guilty plea seemed to be six months or a year or substantially more with serious aggravating factors. This case did not involve violence, premeditation, planning or outside help, however, these were not needed as it was an open prison run on trust which was abused. He was originally sentenced on the basis of his fear that he was under threat from the drug gang he was previously associated with. It was held that this was mitigating as it meant the escape was not cynical or opportunistic. However, not too much weight should attach as escape was not the best option. This offence fell into the lower range but was not at the very bottom. He did not take steps to surrender and resumed drug taking.

20. In R v. Brockway [2007] EWCA Crim 2997 the appellant received a sentence of two years consecutive to his 12 year sentence for aggravated burglary imposed in 2000. He left the open prison in January, 2005. He was arrested in September, 2006. His parole and application for transfer closer to his family was rejected. His daughter was in and out of hospital. He was unwell. The sentence was reduced to 12 months. It was held that this met the gravity of the offence. Doubts were expressed about the value of the reasons for the escape as mitigation especially when it concerned the offender’s or a family member’s health.

21. In R v. Powter [2014] EWCA Crim 2360, which was similar to the instant case, 18 months was found to be excessive. The appellant had been sentenced to an indeterminate imprisonment for causing grievous bodily harm with intent. There was a minimum term of two years. He was twice released on licence and recalled for breach. Having been transferred to an open prison he escaped and surrendered after two weeks. He was not eligible for parole then for a considerable time. The Court held the headline should have been nine months with mitigation reducing the sentence to six months. He plead at the earliest opportunity. The Court particularly relied on Purchase.

22. The appellant submits that this is not a professional type escape as per the categories in Purchase. The English authorities make it clear that the appropriate sentence was considerably less than the headline arrived at by the sentencing judge. Those authorities also consider the aggravating factors present in the instant case, namely the breach of trust. In the present case, a plea was entered on the first occasion in the Circuit Court and an early sentencing date was sought.

23. The sentencing judge erred in fact and law in failing to take into account the circumstance in which the fact of conviction meant that the possibility of future release on licence was delayed. The judge also failed to have sufficient or any regard to the extensive efforts made by the appellant to rehabilitate and failed to have regard to the objective of rehabilitation in sentencing. The appellant works in the prison laundry and is behaving well. It was put forward that he would have to start again with the parole process. This is a significant factor, along with his efforts while in custody, which should have been considered when determining the appropriate sentence.

24. It is submitted that the sentence was excessive and oppressive in all the circumstances. The judge failed to have proper and adequate regard to the mitigating factors. The sentencing judge failed to apply the general principles and policies which govern proportionate sentences. In The People (DPP) v. Kelly [2005] 2 IR 321 Hardiman J. stated that “sentences must be proportionate not only to the crime but to the individual offender”. In The People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351 it was held that sentencing is not just to deter from committing a particular crime but also to encourage offenders to turn away from crime. The sentence should be appropriate to the particular crime and criminal. In The People (DPP) v. M [1994] 3 I.R. 306 Denham J. remarked that in sentencing conflicting principles must be considered as part of the overall situation. The offender’s personal circumstances must be considered and this is the “essence of the discretionary nature of sentencing”.

25. In The People (DPP) v. McCormack [2000] 4 I.R. 356 at 359 it was held that cases depend on their special circumstances. The appropriate sentence is one for the crime committed by that criminal. In O’Malley, “Sentencing Law and Practice”, 2nd Ed., (Dublin, 2006) the author notes that credit must be given for mitigation irrespective of the gravity of the offence. In The People (DPP) v. Kelly [2016] IECA 204 this Court held that a sentence should be appropriate for the crime committed by that criminal. To be proportionate the offender’s personal circumstances must be taken into account and given proper weight. Care should be taken to avoid double counting.
Respondent’s submissions
26. It is submitted that in relation to the seriousness of the offence it is important to consider exactly what the sentencing judge said. In Kelly, the Court specifically references breach of trust as an aggravating factor. None of the English authorities referenced by the appellant were opened to the sentencing judge. Coughtrey was the only cited case involving a life sentence for murder and the appellant was ultimately sentenced to four years.

27. The judge addressed all the relevant points and was particularly concerned with the breach of trust. There is no identifiable error of principle and in all the circumstances the sentence is not excessive.
Decision
28. In this case the appellant was sentenced in Leeds Crown Court in February 1994 to life imprisonment for murder committed during a burglary. He was sentenced along with two co-accused. In accordance with sentencing policy in the United Kingdom, a tariff of twelve years was fixed by the sentencing judge. No such tariff policy exists in Ireland. In March 1998 he was transferred to Ireland to serve the balance of his sentence. During the course of 2015 he was transferred to the open prison of Shelton Abbey. On the 4th of March 2016 it was discovered that the appellant had escaped. He was located at his daughter’s address and arrested on the 19th of July 2016. A European Arrest Warrant had been issued and he was returned to Ireland. On the 6th of December 2016 he pleaded guilty before His Honour Judge Michael O’Shea in the Circuit Criminal Court in Bray. The learned trial judge took the view that this was a serious offence compounded by the breach of trust involved in escaping from an open prison. He fixed a headline sentence in the region of five to six years. Having regard to the mitigating factors involved he imposed a sentence of three years in prison dating from the 19th of July when he was taken into custody in the United Kingdom.

29. There are no Irish authorities of assistance in ascertaining headline sentences in escape cases. The judge was guided only by the maximum sentence of life imprisonment and he worked down from that to what he regarded as the middle range. There are however decisions of persuasive authority to be found in the case law of the United Kingdom that would have been of great assistance had they been brought to the attention of the learned sentencing judge. They are now brought to the attention of this court. It is most unfortunate that the judge was not given the assistance in this regard to which he was entitled. A range of these have been referred to above. We find the two cases of R v Coughtrey (1997) 2 Cr. App. R.(S) 269 and R v Purchase [2007] EWCA Crim 1740 521 to be directly in point and thus of considerable assistance in determining length of sentencing in prison escape cases in Ireland.

30. In Caughtrey the Court of Appeal of England and Wales dealt with a case where the appellant had escaped from prison by burning through a perimeter fence using oxyacetylene equipment and scaled an outer wall. Delivering the judgment of the court, McCowan L.J. stated as follows page 270;

“What has to be said, in general terms, is that breaking prison is a very serious offence, for which a substantial sentence of imprisonment is always to be expected because of the fear and apprehension it generates, the disruption to prison life, the violence and disorder that it may lead to, and the need to deter both the culprit and others.
If the offender is serving a determinate sentence, a consecutive sentence should almost invariably be imposed. Obviously if he is serving a life sentence the sentence for breaking prison will have to be served concurrently. But the length of it should usually be the same as it would have been had he been serving a determinate sentence.

The factors to be taken into account, in determining the length of sentence, will include (i) the nature and the circumstances of the crime for which he was in prison; (ii) his conduct while in prison; (iii) the methods employed in effecting escape and in particular, whether any violence was involved and whether there was extensive planning and outside assistance; (iv) whether he surrendered himself and how soon and (v) a plea of guilty.”

The court reduced the sentence of seven years to one of four to be served concurrently.
31. In Purchase, the Court of Appeal of England and Wales dealt with a case, the facts of which, are very similar to the case herein. The appellant was nearing the end of his sentence and had been transferred to an open prison. It was discovered shortly after that he had escaped. He walked out he said because it was his sons fifth birthday. An application to serve his sentence closer to his home had been recently turned down. He was arrested having been absent from prison for fifteen days. Before Bournemouth Crown Court he was sentenced to nine months imprisonment consecutive to his then current sentence. Calvert-Smith J delivering the judgment of the court stated as follows;

“5 The authorities which have been decided on the appropriate level of sentence in this class of case divide roughly into two: cases like the present where a prisoner on his or her own escapes from custody and has some kind of personal pressure which persuades him or her to do so, and cases where professional criminals are assisted to escape by confederates outside (or sometimes even inside) the prison. The former category of case attracts sentences which are measured in months and the latter category in years.
6 In this class of case there are a number of factors which the courts have considered over the years in assessing where in the scale of months a particular case should fit. Was there planning or was this an impulse? Was there violence or damage caused? What was the reason for the escape? Did the offender surrender or make arrangements to surrender before he was caught? How long was he at large? What else did he do while he was at large? ”

32. We find these decisions to be of great assistance in determining the appropriate sentence herein. The appellant appears to have escaped with some degree of planning as found by the learned sentencing judge. There was no outside or even inside assistance. No violence or damage was caused. There were personal reasons for his escape. He did not surrender but could hardly be considered as hiding from the authorities because, although he left the jurisdiction, he travelled to and stayed at his daughter’s address which was known to the authorities. He was at large for three and a half months. While at large, he did not engage in any criminal or reprehensible behaviour. This was an offence that should have attracted a sentence measured in months rather than years. The above factors should have been taken into account in determining how many months. We thus find an error in principle in the sentencing herein and will proceed to resentence. We consider that a sentence of ten months to run concurrently with the life sentence he continues to serve is the appropriate sentence. The appellant has served one year and four months in Wheatfield Prison since the operative date of the sentence in respect of his escape and thus the sentence imposed hereby may be considered as having been served.