Sentencing Process

Cases

Director of Public Prosecutions -v- Byrne

[2014] IECA 45 (19 December 2014)

Composition of Court:
Ryan P., Peart J., Irvine J.
Judgment by:
Court of Appeal
Status:
Approved
___________________________________________________________________________

 

THE COURT OF APPEAL
[103/14]

The President
Peart J.

Irvine J.

 

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
MICHAEL BYRNE

APPELLANT

JUDGMENT of the COURT (Ex tempore) delivered by The President on the 19th day of December 2014
1. The appellant herein is Mr. Michael Byrne and he is now 77 years of age, having been born on 25th May 1937.

2. He pleaded guilty on his trial date in September 2013 to four counts on the indictment as sample counts on the understanding that the remaining counts would be taken into consideration. The indictment contained 15 counts of indecent assault perpetrated against his victim between January 1975 and March 1978.

3. The applicant was sentenced on 10th April 2014 to two years imprisonment on each of the counts with the other counts taken into account to two years imprisonment i.e. the maximum sentence of imprisonment on those four counts, totalling eight years imprisonment. The learned trial judge then suspended the last or the latter four years of that, leaving a custodial sentence of four years and a suspended sentence of a further four years.

4. The victim in this case was born in March 1963. He was aged between 11 years and 15 years at the time when these crimes were committed on him. The appellant was aged in his late 30s and early 40s at the time. The appellant was a secondary school teacher at the time, a matter of real significance in this case, which gave him a position of esteem and responsibility in his own community and it gave him a position of authority and even control over his young victim.

5. The offending occurred in a number of different venues over the period of years that I have mentioned. It began with what we now know is calculated grooming behaviour and progressed, getting gradually more intrusive and gradually more offensive. First, there was touching or groping and that developed into circumstances where the appellant masturbated the boy. This happened on a regular and frequent basis over the period of years. It involved, not just abuse of power and authority by the appellant, but also deceit. The boy had had a medical condition for which he had been treated and the appellant exploited this for his nefarious ends by saying he needed to get sperm samples in order to check the boy’s condition. He pursued this policy over a long period of time, giving credence to the deceit by actually collecting samples. It got worse because he told the boy that the quality of the sample would be better if the boy was more aroused, so there was a degree of planning, calculation and exploitation in the manner in which he behaved.

6. These features that I have mentioned are recognised in all authorities as being indicative of serious, aggravating features of sexual crimes, namely, dominant position, abuse of trust, length of time during which abuse happened and active deceit perpetrated over years. The trial judge expressed the essence of this when he said:

“In respect of the sexual abuse, Mr. Byrne was a teacher, as I have already outlined, to his esteem in the local community. He was in a position of trust, respect, confidence, he was in a dominant position by reason of his position and also he was supervising children in respect of the band and any parent, including the children, were entitled to feel safe if they were in his company. The abuse was cold, calculated and premeditated and I can only describe the conduct of Mr. Byrne as acting as a predator in respect of the boy. The abuse was systematic abuse and I describe the abuse as revolting, disgusting, horrific, embarrassing and humiliating.”
and he went on in similar vein.
7. The trial judge determined that the appropriate sentence, accordingly, was two years in respect of each of four sample counts, taking the others into account, and then he discounted that whole thing by four years. The appellant proposes, through Mr. Gageby, his Counsel, first of all he says this was not one of the worst cases in regard to the acts themselves. Therefore, he proposes that because there could be worse cases, the proper approach to take is to locate the seriousness, the gravity of the offence at a point lower on the scale, so to speak.

8. The first point about that is that in an offence of which the maximum, for reasons that we need not concern ourselves with, the maximum penalty was two years. The scale is necessarily a narrow one. Having said that, it is the view of this Court that the relevant features of the case, the relevant features of the crime must be taken into account. There is clear authority to say that the approach the sentencing Court, and indeed an Appeal Court takes, is to look at the crime as committed by the accused to decide whereabouts that is to be located on the scale of gravity or heinousness. The crime in all its circumstances, and those circumstances include the ones that I have mentioned, the circumstances of the crime also include the impact on the victim. In this case, the Court below had a most powerful exposition of the impact on the victim in this case and how, although making a very considerable success in his life, he had found himself in his mid 40s having a major crisis. He explained all that to the Court and, as it would do to any Court, it impressed the learned Circuit judge who was dealing with the matter. It is powerful and poignant and impressive. That was part of the circumstances that had to be taken into account and the Circuit judge referred to them.

9. In considering the circumstances taken into account by the trial judge, there was an unfortunate feature in that it was stated, as it had been in evidence, that Mr. Byrne, the accused, had previous convictions for indecent assault. Those are not precisely the words that were used by the Garda who was the investigating Garda giving evidence, but it seems to the Court that that was the essential impact. That was not corrected by anybody, but it turns out not to have been correct, in that Mr. Byrne had been convicted at the relevant time i.e. in October 1971/1972 of acts of gross indecency with another man which might sound just as bad, but it is not, because that was homosexual behaviour which did not involve assault or want of consent or anything of that kind. So there was that feature of the case.

10. The criticism of the judgment consists, essentially, of three issues. First of all, Mr. Gageby contends that this is not the worst of the crimes and therefore that there should have been an allowance made so the judge should have started at a lower point in the scale of zero to two years and then he should have applied some mitigation to that. This Court rejects that submission on the basis that in all the circumstances, taken properly into account in this case, whatever might be said about the specific and narrow point made by Mr. Gageby about the individual acts, and without deciding that point, taken as a whole and in context of the features that I have mentioned, it was legitimately and properly viewed by the judge as being at the top of the scale.

11. There is the question of the lapse of time from the time of the offence up to date and the fact that the accused has not come under any adverse notice, has not been convicted of anything, and more than that, has given no reason to suppose that there was anything other than a blameless existence and what is to be done with that. That is a matter of discussion in cases of this kind. Yes, it is relevant. It is not expressly or explicitly stated in the judgment of the learned Circuit judge but it would seem legitimately inferable that it must have been in his mind, but he does not specifically refer to it.

12. It is not quite so simple a matter as it might appear because it is a feature of this kind of offence that, by its nature, casts over its victims a cloud of guilt and unease, such that it is very often suppressed so that the actual revelation and disclosure of the case and reporting of the case does not come about until very many years later. There is a question of the logic and the justice of allowing an accused person who has been guilty of such offences to claim the benefit of the impact of the very offences on the victims. But this Court does not have to decide that point because it is satisfied that in all the circumstances of the case, the serious aggravating features were sufficient in this case to warrant the placing of the case at the higher end, at the top end of the narrow range that is available in the cases.

13. What the judge did in the end was to total the various counts to come to eight years and then to make an allowance for various mitigating features. Obviously, they included the guilty plea, in fairness, which is always of value, significant difference to people and it is not to be diminished and nothing that this Court says is intended to diminish that. The plea of guilty, even though it came somewhat late in the day, it is not as early as it might have come, it is still of significant value.

14. It is fair to say that the learned trial judge in this case placed a good deal of reliance on the fact in mitigation of the pleas of guilty, which he said meant if the case went to trial, the victim would have been subjected to cross-examination; he would have to recall the horrific details of the assaults. That would have been extremely stressful for him. He took account of the accused’s personal circumstances, his family circumstances, the illness of his wife, and in the course of a lengthy analysis, he arrived at his conclusion. Ultimately, having reached the total of eight years imprisonment, the learned trial judge applied a generous reduction of a full half of that period of time. That seems to this Court to represent an allowance that adequately covers all the points that might be made in mitigation. It is also the case that if one took a different approach to the case, and if one were to accept the proposition that the cases, as they stood on their own, were to be located at some lower point on the scale, in circumstances where, because of the repetition of the offences over a period of years, it would have been perfectly proper, as the judge did, to take consecutive sentences into account, that it seems to the Court that the ultimate result would not have been different from the outcome as arrived at by the learned trial judge by the mode or method that he adopted. So by adding them up at two years and taking half of that off, the result, had he adopted a different approach, would have been, in the view of this Court, precisely the same thing.

15. In the circumstances, the Court is not satisfied that there was any error in principle and the Court rejects the appeal as to the severity of sentence.

16. The Court’s view is that although the previous convictions were described as indecent assault and not gross indecency, that was unfortunate but is not such as to affect this Court’s view as to the propriety of the sentence overall or that it can be regarded, in the context of the lengthy judgment delivered by the learned Circuit judge, as having affected the sentence to a material degree that would affect the judgment of this Court.

Approved: Ryan P.

People (DPP) v MT [2018] IECA 369

JUDGMENT of the Court ( ex tempore ) delivered on the 27th day of November 2018 by Mr. Justice Edwards.

Introduction
1. On the 9th of October 2017, the appellant pleaded guilty to one count of assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997 (“the Act of 1997”). On the 11th of December, 2017, the appellant was sentenced to three years’ imprisonment, with the sentence backdated to the 20th of November 2017.

2. The appellant has appealed against the severity of this sentence.

3. This record of the Court’s ex tempore judgment is redacted, having regard to desirability of so doing under the GDPR, so as to preserve the anonymity of the victim in circumstances where the un-redacted judgment contained identifying personal information relating to her to which it was considered necessary to refer.
Background facts
4. The appellant herein is married to the victim of the present offence. The evidence at the sentence hearing was the couple met online in July 2014 when the appellant was living in Turkey and the victim was living in England. Subsequent to communicating online, the couple met each other and ultimately married in August 2015. The evidence was that, due to difficulties faced by the appellant in terms of acquiring residency status and capacity to work in England, the couple moved to Ireland in late summer 2015.

5. After moving to Ireland, the couple were encountering financial difficulties. The victim was not working, and the evidence was that “they occasionally slept in her motor car and … they also stayed in short term letting arrangements.” Before the night in question, the victim had taken up employment in Dublin and the couple were staying in a cheap self-catering guest house in Rathmines. The evidence was that ” the fact that she had taken up that employment was the cause of some dispute” between the two. The couple booked into this accommodation on the 8th of December 2015. Over the course of that evening, the appellant was said to be “simmering….in consequence of a number of matters but most particularly in relation to her employment.” The appellant was also said to have been angry at the victim for burning pizza that she had cooked. The evidence was that the appellant had calmed down somewhat after the victim had picked up a chair so as to make the appellant back away. However, then, as the victim was having a cigarette by the window of the flat, the appellant all of a sudden grabbed her by the neck from behind, punched her on the left side of her face before hitting her again on the back of her head. It seems that the victim was rendered unconscious as a result of these blows. After regaining consciousness, the victim was very confused and did not know where she was. The evidence was that the appellant informed her that she needed to go to the hospital and it was at that stage that she realised the extent of her injuries.

6. The victim, having been driven to the hospital by the appellant, was informed that she had suffered a broken jaw on both sides. She also had a swollen left eye which was almost closed over, a cut to her forehead, swelling and bruises to her neck, and various other scratches and abrasions around her neck and shoulder area. A Dr. Moughty examined the victim at the hospital and reported on her condition in the following terms – “On examination she was orientated in person, place and time and had a large haematoma over the left side of the face with tenderness overlying the maxilla. She was unable to open her jaw. A neurological examination was normal. She had an OPG performed which showed bilateral mandibular fractures and she was admitted under the emergency department to facilitate a CT scan of the brain.” Fortunately, the CT scan did not indicate any brain injury. Photographs of the victim’s face, taken at the hospital in the aftermath of the incident, were handed into the sentencing court.

7. Members of An Garda Síochana were notified of the condition of the victim by hospital staff and attended at the hospital to investigate same. Gardaí took a statement of complaint from the victim and over the course of this process, Gardaí were furnished with a number of text messages sent to the victim from the appellant, including: “Go baby, go far from me where you are safe. I’m really sorry for what I’ve done to you but I won’t forgive myself” ; “My prayers, my heart and my mind will be with you”, and; “I’m sorry about your jaw and your eye bone. I feel so much pain in my head and we’re soul mates” . The evidence was that a number of voice messages were left on the victim’s phone from the appellant, purporting to express his remorse for his actions. There was also a bouquet of flowers delivered to the victim, along with a note, which said “What I have done can’t be forgivable by some flowers.”

8. Gardaí continued to investigate the matter and on the 11th of December 2015, the appellant was located at Terminal 2 at Dublin Airport. He was arrested and detained under s. 4 of the Criminal Justice Act 1984 for the proper investigation of the offence for which he had been arrested. He was interviewed on three occasions. On the first and second occasions, the appellant did not accept responsibility for the offence, claiming that he had returned to the apartment in Rathmines to find the victim in the condition she was in. During the third interview, however, and having had a number of the text messages, outlined above, put to him, the appellant accepted full responsibility for the offence. During this interview the appellant stated that an argument had broken out between the two and as a result he had lost his temper and punched the victim four times in the face.

9. The appellant was ultimately charged and pleaded guilty to the count of assault causing harm and was sentenced in the terms already outlined.
Impact on the victim
10. The victim in this case read out her lengthy victim impact statement to the court in the following terms:

“The violent assault on me … will affect me for the rest of my life. Having been in a relationship with him has been very traumatic and has made a huge impact on my mental and physical health. The night in December 2015 will be something I can never forget. There isn’t a day goes by without I think about it. I received those injuries because I wanted to leave him. I finally had had enough and I believed my life was in danger, I couldn’t take anymore. I still find it hard to believe that my husband who was supposed to love and protect me to be the cause of the level of the injuries I had and that he lied from the beginning and took no responsibility or remorse. I was pregnant at the time of the December 15 assault. I believe he doesn’t see anything wrong with his behaviour or regrets what he did. I would like to tell you how this assault has affected my life. I am in constant pain in my jaw, mostly the left side of my face. I keep getting abscesses and have to be on regular antibiotics and pain killers. I have had to had a lot of work to rebuild my teeth due to not being able to open my mouth properly to brush my teeth for at least three months after the assault. In the first few days/weeks after the assault I couldn’t even place my head comfortably on a pillow as every part of my head hurt so bad. The pain I felt from the assault is the worst pain I have ever felt, far worse than child birth. I suffer regular headaches and every so often my neck jars in a certain position. the psychological impact has affected me to the extent where I regularly feel suicidal. Even to this day, 18 months on, I cannot stop the flash backs coming into my mind. I have high anxiety every day and have been diagnosed with PTSD. The reports from my counselling service will explain this more. I have regular flash backs which can happen at any time, anywhere with many things setting it off. During a flash back I get very disorientated and it can take a few hours to be able to calm down. I take antidepressants, Diazepam and … which is a sedative to help me sleep. I find it hard to leave the house without the fear of him being in the house when I return. Every day I have to check all my entry points to the house and I have to do this after I go out to an appointment or when I return. I rarely feel safe in my house as I know how quickly he can attack me and I wouldn’t be able to defend myself. I have an alarm on my bedroom door and I always change the route I drive to my house every time I go out. I still find it hard to trust people. I don’t think I will ever trust anyone again. He shattered my faith in people that someone won’t hurt me ever again and I’m unable sorry, I’m very untrusting in people’s actions so it’s generally safer for me to be on my own. I used to be a fun, happy, confident person who enjoyed life. I had many friends but after he isolated me from everyone I’m finding it hard to trust them again, even though they have helped me so much. The assault has also affected my children. For a while after the assault I found it hard to reconnect with them. I found it hard to let them back in. I was scared of feeling any emotions at all. They couldn’t understand this, why I was so closed off from them. I found it hard to show physical emotions with them for a while as I couldn’t bear to be touched. Being loved genuinely felt so foreign to me. My daughter is petrified of him and him finding us or taking Mummy away again. She needs to know where I am and what I’m doing all the time. She’s decided she doesn’t even want to have a boyfriend in case this happens to her. She is nine years old. She doesn’t need to be frightened of things like this. The assault has also affected my son. He’s been especially clingy and I regularly find he’s got into my bed at night and has had nightmares. My son also likes to hug me really tight but I can’t bear to be touched anywhere around my neck or head. I have to push him off and he doesn’t understand why and I’m worried he’s going to grow up thinking it’s wrong to give affection. He’s six years old. They both get nervous when they’re not around me and are worried about my safety and if I get a bruise they are scared [he] has found me. They are children. They shouldn’t be a worry for them. I didn’t get to spend Christmas December 2015 with them as I was still so heavily bruised and I didn’t want them to see me like that. I will never get that time back with them. That year, on my daughter’s Christmas list, the only thing she wanted to be was to see her Mummy again and to be happy…… Their quality of life has changed drastically. I am in pain. I’m scared to go out. I’m scared for my future and my confidence is very low. I don’t enjoy things like I used to and I don’t trust in most things. My concentration has been effected a lot. I struggle to watch a TV program all in one go. This is one of the reasons I haven’t been able to work since the assault. My old job has offered me my job back but I haven’t been in a position where I can function constantly on a day to day basis or where I feel I can cope with the pressures of working life. I have regular panic attacks, depression and days where my brain just doesn’t function properly. Some days I even struggle to get out of the bed and get dressed. I struggle it do daily tasks. I’ve worked all my life and I feel ashamed I get my income through the Government sick pay. I am now declared bankrupt due to the debts he’s left me in. I was stupid enough to put everything in my name. I don’t sleep well and when I do sleep I wake up every few hours with nightmares. I don’t think I will ever forget the feeling I was going to be killed the night of the assault. I will never forget how calmly he was when he was punching me. I will never forget the pain of every blow, going unconscious and back and still being punched. I truly believed I was going to die. I will never forget the fear of trying to not upset him after I convinced him to take me to the hospital after he refused to call me an ambulance. All the way there I was petrified he was going to hurt me more. There are many things I will never understand about what he did or the way he is or he’s never being sorry for it. I have to live with the fact I’ll probably never get these answers. After hearing at the trial he went back to the room and slept that night thereafter he assaulted me and then lied straight away really disturbs me. This makes me feel extremely intimidated and I’m asking if I could have a barring safety order for me and my children for the rest of our lives. It’s going to be a long time to put my life back together but I feel I have been given a second chance at life. That night he assaulted me could have ended very different. In my eyes he could have killed me. With his martial arts training he knew how hard he could hit me and what techniques to do the most damage. I have a long way to go, but I will do my best through counselling to get my life back on track and I am determined to have a happy, normal future.”

Appellant’s personal circumstances
11. The appellant was twenty-eight-years’-old at the time of sentence. He is from Afghanistan originally but moved to Tehran in Iran with his parents. He later moved to Turkey on his own so as “to better himself” . In a written testimonial put before the sentencing court, from a church volunteer the writer indicated that as he “came to know him [the appellant], it was obvious that he had come through many challenging times both in Iran and Turkey, where violence was never far away.”
12. After moving to Ireland with the victim in late summer 2015, the appellant applied for asylum here. As touched on earlier in this judgment, the appellant was not entitled to work in the State. For a period of time prior to the present offence, the appellant was sleeping with the victim in her car at various spots around Dublin City.

13. It is apparent that, apart from the victim, the appellant has no family with him in the State. However, a number of testimonials placed before the sentencing court indicated that, approximately two months after the offence, the appellant became involved with the Church of Latter Day Saints. One letter from a Minister in this Church indicated that, whilst the appellant “has some issues in his life which he is desperately trying to overcome” , he has undergone “a considerable change in his behaviour” and expressed a belief “that as we continue to support and guide [M] he will continue to make the necessary changes in his life in order to turn his life around.” The other letter, from the church volunteer referred to earlier, also indicated that the appellant “desires to live a good life and has demonstrated that, by adopting our church culture, [he] has tried to bring his life into accordance with the principles of the church” . The letter also indicated that the appellant had recently (January 2017) been baptised into the Church of Latter Day Saints.

14. It was also indicated at the sentence hearing that the appellant had, since the incident, entered into a relationship with another young woman who was expecting a child with him around Christmas of 2017. Defence counsel, in his plea in mitigation, urged upon the sentencing judge to “bear in mind that he is about to be the father of a child in the very near future and that a custodial sentence would inevitably impact upon the support which he should properly give to his young child and to his current partner” .

15. The appellant has no previous convictions, either before or since the incident in question.
The sentencing judge’s remarks
16. In passing sentence upon the appellant, the sentencing judge made the following remarks, insofar as they are relevant to the present appeal:

“……The incident can only have been regarded as an extremely frightening experience from her point of view and, of course, she — it was perpetrated upon her by her husband and someone from whom she was entitled to the highest degree of personal respect and, one need hardly say, in no circumstances any question of the perpetration of violence … .”
“For reasons, whether associated with his culture or otherwise, he objected to the fact that she had sought employment, indeed she was to start a new employment some days afterwards, the Monday of the following week. And this was apparently the trigger, so to speak, for his behaviour on the evening in question. She was also alleged to have burned some pizza and apparently this also, it seems, annoyed the accused. So, it can be seen … that the offence was in no sense explicable in terms even of ill temper, or provocation, or anything of that type, and was something to be regarded as at the most serious level in terms of offences of this kind, both in terms of the breach of trust and the want of personal respect and also the extent of the brutality used and the extent of the injuries. She described herself as being grabbed by the neck from behind. She described herself as being punched and receiving at least one blow to the head in the circumstances where she became unconscious and, when she recovered consciousness, she didn’t know where she was, she was confused. The accused at that stage said that she should go to hospital and in fact he brought her to hospital.

I do not quote the report in full but I hope and would like to think that that gives a clear indication of the adverse consequences and continuing adverse consequences on her of what occurred. So, she was an innocent victim in the fullest sense on this occasion. The injuries were severe, the nature of the charge is assault causing harm. There was a gross breach of trust and it’s a particularly serious example of domestic violence. For these reasons, I believe that it ranks as an offence at the top of the scale of seriousness in terms of assaults causing harm and, in those circumstances, one has to consider a sentence not quite at the maximum level but at the very upper end of the sentencing ambit in this case. And in those circumstances, it seems to me that one could not consider a sentence of — absent other factors, of — at the very top of the scale. When I make that observation, of course, I do so not merely because of what she has suffered but also having regard to what I have been told about the accused.

Now, his current partner was, at least when the submissions on sentencing were made to me, expecting a baby. … [T]he submission has been made to me effectively that I should take into account that his partner is expecting a baby and that he now has what is apparently a stable relationship. I am not taking those factors into account, I’m making that quite clear as a matter of principle. The responsibility for what occurred is his … he bears the responsibility for what has occurred and must meet it.

Now, there are a number of reports which have been furnished to me. These are reports which have been given, in the main, I think it’s fair to say, by those involved in the Church of Jesus Christ of the Latter Day Saints. He became involved in the activities of the church, it seems, at — in January 2016, after these offences were committed, or this offence was committed, I should say. The reports have been given are favourable. He is now a member of that church and it is asserted that he feels deeply sorry for what he has done and the — and of course he has pleaded guilty. I have one report from Mr J T ….” … “He is described by Mr T as someone with whom he has become a good friend and he says he is convinced that he desires to live a good life and has demonstrated that by adopting his church’s culture.

Now, I also have a report from Mr T D who serves as a minister of the church …. He [says]: “We continue to support and guide M. He will continue to make the necessary changes in his life in order for him to turn his life around.’

There is also a character reference from someone with whom he was become friendly, a Ms D T, who is a Polish lady, and she describes him as being someone who has always been willing to help. She says that many people would give up having regard to his background and she would continue to support him.

Now, there is also a reference from Mr D G of the same church who asserts again his remorseful nature.

Now, he pleaded guilty and I accept that these are people of standing and I accept accordingly that he is someone who has shown a degree of remorse. He appears to have been sorry at an early stage for what he did to this lady, inasmuch as he sent texts to her in the hospital and flowers, for what that is worth – that is a matter I disregard as being of no consequence, but he does appear to have shown a degree of contrition by texting her, but the accused did not admit this offence until his third interview with An Garda Síochana and did not plead guilty until the 9th of October last.

Now, his history has been a bad one, an unfortunate one. It seems that he left Afghanistan as a refugee, lived in Iran for a period of time, and then lived in Turkey. He travelled to this country, it seems, and claimed asylum. The complainant had first contact with him, as I understand it, over the internet and then she visited Turkey. But she seems to have fallen into the hands of a man of violent disposition as we see from this incident. He is — the question then is firstly the moral culpability of the accused for this serious offence at the top or very near the top of offences of this category. His moral culpability is mitigated somewhat by his history, but the seriousness of the offence speaks for itself. I think accordingly an appropriate starting point in respect to this issue would be a sentence of approximately four and a half years, that would be four years and six months. Sentencing is not a process of vengeance. One has to balance many different factors. He has however pleaded guilty to this offence and, as I say, the people who have given the reports seem to be people of standing and I am prepared to accept a degree of contrition on his behalf – perhaps somewhat belated but, in the circumstances, accordingly I will impose a sentence of three years’ imprisonment, affording him due credit for the factors which I believe mitigate the sentence.”

Grounds of Appeal
17. The appellant, in seeking to impugn the sentence imposed upon him, proffers the following grounds of appeal:
i. The sentencing judge gave insufficient weight to the mitigating factors in the case and excessive weight to the aggravating factors.
ii. The sentencing judge gave inadequate credit for the guilty plea and had excessive regard to the fact that the plea was entered on a trial date.

iii. The sentencing judge made a finding that the appellant had a predilection for violence without any evidential basis for doing so.

iv. The sentencing judge gave insufficient weight to the fact that as a foreign national, the appellant will find a term of imprisonment more difficult than it would otherwise be.

v. The sentencing judge gave insufficient weight to the expressions of remorse made by the appellant.

vi. The sentencing judge gave insufficient weight to the fact that the appellant had no previous convictions.

Discussion and Decision
18. The Court has received helpful written submissions from both sides for which it is grateful. At the oral hearing three complaints were pressed in particular, and it is convenient to deal with them seriatim .
19. The first complaint comes within the generic ground which forms ground no. (i), namely that inadequate account was taken of mitigating circumstances, and in that regard counsel for the appellant refers in particular to the sentencing judge’s statement that:

“[T]he submission has been made to me effectively that I should take into account that his partner is expecting a baby and that he now has what is apparently a stable relationship. I am not taking those factors into account, I’m making that quite clear as a matter of principle. The responsibility for what occurred is his … he bears the responsibility for what has occurred and must meet it.”
20. Counsel contends that the sentencing judge erred in asserting that he would not, as a matter of principle, take into account the second relationship and the fact that the appellant’s new partner was expecting a baby. Counsel submitted that this was a matter of some weight, being indicative as it was of rehabilitation and stability.
21. In the Court’s view, the fact that the offender was in a new relationship by the date of sentencing, and that his partner was expecting a child, was a matter to which the judge in his discretion might possibly have attached some modest weight, but equally he could not be criticised if he decided to attach little or no weight to it, in the overall circumstances of the case. A sentencing judge has a considerable margin of appreciation as to what weight, if any, to attach to a potentially mitigating circumstance. In this particular case, we do not consider that it is a correct interpretation of the sentencing judge’s remarks to construe them as rejecting, on the basis that it was “a matter of principle” , the idea that such circumstances could be mitigating at all. Rather, it seems to us that what he was saying was that taking responsibility for one’s actions cannot be avoided by pointing to some collateral prejudice that might be suffered by a third party, such as a partner or a child, in the event of the offender having to go to prison. He was clearly correct in that respect. It was a matter for his discretion as to whether he was disposed any significant weight to the circumstance relied upon. It seems that he was not so disposed. However, we can find no error of principle in the remarks complained of.

22. The second matter of complaint pressed at the oral hearing was an alleged failure to give full credit for the appellant’s remorse. In particular, complaint is made about the passage from the sentencing judgment in which the sentencing judge said:

“Now, he pleaded guilty and I accept that these are people of standing and I accept accordingly that he is someone who has shown a degree of remorse. He appears to have been sorry at an early stage for what he did to this lady, inasmuch as he sent texts to her in the hospital and flowers, for what that is worth – that is a matter I disregard as being of no consequence, but he does appear to have shown a degree of contrition by texting her, but the accused did not admit this offence until his third interview with An Garda Síochana and did not plead guilty until the 9th of October last.”
23. Counsel for the appellant contends that the sentencing judge appears to have regarded the appellant’s remorse as less than fulsome or genuine by virtue of the fact that he did not make admissions until his third interview with An Garda Síochana. It is also suggested that the sentencing judge erred in dismissing the significance of the flowers sent to the hospital.
24. In our view the sentencing judge, who heard the evidence, was best placed to evaluate the evidence suggestive of remorse. It seems to us that he accepted that the appellant had shown “a degree of remorse” and that the appellant had expressed that, in particular to the victim, from an early stage. However, he was also making the valid point that while expressions of remorse may be taken as indicative of self-perceived guilt and the existence of contrition, they can also sometimes be, but are not always necessarily, indicative of a willingness to accept responsibility for one’s actions. The sentencing judge’s point was, it seems to us, that whatever about the appellant’s personal feelings of guilt, and contrition with respect to what he had done to the victim, there was no willingness to accept responsibility up until his third interview when he was confronted with the text messages that he had sent, and so the early expressions of remorse had to be seen in that light. However, it is clear that the sentencing judge was fully alive to the fact that ultimately the appellant’s remorse was unconditional. We therefore find no evidence of an error of principle in the remarks complained of.

25. Finally, it was complained that the sentencing judge’s further remark in which he stated that the victim had “fallen into the hands of a man of violent disposition as we see from this incident” , was indicative of an error. According to counsel, the evidence at the sentencing hearing did not support a violent disposition, in the sense of a tendency towards violence, and there was no evidence that what had occurred was other than a once-off regrettable event, i.e., something that was aberrational and out of character.

26. In this Court’s view, the language used by the judge was not to be given the construction urged by counsel for the appellant. The characterisation of the appellant as being a man of violent disposition was qualified, and contextualised, by the additional words appearing in the same clause, namely “as we see from this incident.” The sentencing judge was therefore not talking about some general tendency or disposition towards violence, but very specifically, about the fact that the appellant had actually and indisputably perpetrated significant violence on the victim in this case. We are satisfied that the judge’s remarks do not provide any grounds for this Court’s intervention.

27. Finally, with respect to the other grounds of appeal, which were all to the effect that there was insufficient discounting for discrete mitigating circumstances, i.e., the guilty plea, that fact that the appellant was a foreign national and would find imprisonment in an Irish jail more onerous on that account, and the fact that there were no previous convictions, we reject those complaints. The sentencing judge nominated a headline sentence of four and a half years in circumstances where he believed that the gravity of the offending conduct was such as to place it close to the top of the range. We agree with that. In circumstances where the ultimate sentence was one of three years, it is clear that there was a substantial discount of eighteen months (33.3%) to reflect all of the mitigating circumstances, and we are satisfied that it was adequate. We find no error of principle on that account.

28. In the circumstances we must dismiss the appeal.

DPP -v- Mark Drinkwater

[2007] IECCA 84 (31 July 2007)

Murray C.J. 140/06
Herbert J.
McGovern J.

BETWEEN
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

MARK DRINKWATER
APPLICANT
JUDGMENT of the Court delivered on the 31st day of July, 2007 by Murray C.J.
This is an application for leave to appeal against a sentence of imprisonment for two years for the offence of burglary contrary to s. 12(b)(3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 which was imposed by the Dublin Circuit Court on 26th June, 2006 the applicant having first pleaded to the offence on 22nd February, 2005.

Facts relating to the offence

On 15th June, 2006 evidence was given before the Circuit Court by investigating Garda to the effect that the applicant along with his co-offender, Noel Blake, was arrested in the early hours of the morning of 22nd January, 2004 in Bloomfields Shopping Centre, Dun Laoghaire. The evidence was that they had entered the cash office in the car park of the shopping centre. They had attempted to remove a safe in the office which was subsequently ascertained by the Gardaí to have contained €9,042.00.

Evidence was given that the applicant, at the time of the Circuit Court hearing, was 33 years of age with a partner and a 14 year old girl and that he was unemployed. He had 34 previous convictions. Most of the convictions were road traffic offences. On 5th October, 2001 the applicant was convicted of assault, “threatening, abusive and insulting behaviour; hit and run; failure to remain at the scene of a road traffic accident; driving without reasonable consideration” and for that he received one month imprisonment, one month imprisonment and two fines of €63.49. He was not on bail when he committed the offence in this case.

The case put by counsel for the applicant was that he had not been convicted of any offence since he was arrested in 2004. It was also stated that he was a heroin addict.

It was further stated on behalf of the applicant that he had reached intermediate certificate level at school and on leaving school took up apprenticeship as a carpenter and that continued for a period of approximately 3½ years. At the age of 19 he began abusing drugs and that for a long period throughout his 20’s and into his early 30’s “he struggled with a heroin addiction”. Counsel for the applicant relied on the applicant’s plea of guilty, the absence of any further offences in the two years since he was arrested in 2004 and that he was registered with the relevant authorities in Bray as actively seeking work.

Particular emphasis was placed by counsel for the applicant, when addressing the learned trial Judge, that the applicant appeared to have taken steps to overcome his heroin addiction by contacting authorities at an establishment called Asheire which treats such addicts. It was stated that he may be on a waiting list but that there were a number of preconditions, 1. that the criminal proceedings would have to be behind him and 2. that he provide a urine analysis clear of drugs. It was acknowledged that he was not providing a urine analysis to anybody but he intended to address this.

Some documentation was handed in in connection with the Asheire establishment and the learned trial Judge pointed out that the pre-admission requirements were that firstly that he detoxify completely, secondly undergo drug screening, thirdly the pending criminal case would have to be resolved before a bed was offered to him, fourthly that he make contact with the establishment the following Friday and fifthly that he bring a deposit of €2,500.00 and pay the balance of fees through his account. The trial Court raised the question as to how he intended to foot the cost of any treatment at the centre.

The applicant gave evidence that the treatment would cost initially €2,500.00 and then €30.00 a week for two years. His evidence was to the effect that his mother would pay for the treatment. The learned trial Judge indicated that it was easy for someone to say that their mother was going to give them the money but the person to give such evidence was the mother herself. The learned trial Judge also indicated that he was not familiar with Asheire and its activities.

Counsel for the applicant then said “Well if the Court wishes to put it back for reasons which may be twofold, one his mother and two is information from Asheire?”, to which the learned trial Judge replied, “I would like to hear a little more about Asheire and a little more from his mother before I take, as you put it, take a chance.”

A probation report on the applicant, which had been sought at an earlier time, was before the learned trial Judge on this date but apart from a brief reference to that fact there was no other reference made to it by the learned trial Judge or counsel for the applicant on that occasion.

The sentencing of the applicant was adjourned to 26th June. Evidence had been given to the Court concerning the applicant’s co-accused, Noel Blake, who was before the Court on a similar charge plus other charges on other bills of indictment and that too was adjourned until 26th June.

On the resumed date on 26th June the trial Judge stated that he had had an opportunity to look back over his notes of the evidence in the case and to read the probation and welfare reports in relation to both the accused, that is to say, the applicant and Noel Blake. The learned trial Judge then proceeded to make reference to the charges to which the accused Noel Blake pleaded guilty other than that on which he was jointly indicted with the applicant. When he came to the indictment on foot of which the applicant and Mr. Noel Blake were jointly charged counsel for the applicant intervened in the following terms:

“Sorry to interrupt the Court at this point, Mr. Drinkwater’s mother is in Court and the Court asked that she be here to tell the Court if she is going to fund Mr. Drinkwater’s treatment in Asheire and you asked for more information about Asheire if that was available to the Court and I can tell the Court that Mrs. Drinkwater is in a financial position, I have seen a Credit Union statement, as if (sic) the Courts want to formally hear from her.”
In response the learned trial Judge said:
“No, that is not going to be necessary, I have read through everything over the weekend and this is a question of burglary at Bloomfields Shopping Centre when the Gardaí – the Gardaí had previously been at the shopping centre, two men having been seen hopping over a fence.”
He went on to make reference to the particular facts of the case. He then proceeded to sentence Noel Blake. Having done so, he then proceeded to deal with the circumstances and sentencing of the applicant. In the course of sentencing he mentioned the probation report according to which the applicant did not accept full responsibility for the offence to which he had pleaded guilty and that the Probation and Welfare Service stated that they were unable to make recommendations for further involvement with him. He proceeded to impose the sentence of two years imprisonment on the applicant.
After some discussion with counsel for Mr. Blake concerning the date from which his sentence should run having regard to the fact that he had been in custody for 10 months the learned trial Judge inquired as to what was the situation in relation to the applicant.

Counsel for the applicant then said that the applicant had come into Court and “…on your directions there is information from Asheire and his mother is in Court to say she was going to pay the €2,500.00 and the Court had indicated that the Court was thinking about taking a chance on Mr. Drinkwater.” The learned trial Judge replied, “Yes, well I have read the probation and welfare reports and the probation and welfare reports, as you know, are not hopeful.” Counsel for the applicant responded by saying that the applicant’s difficulties were centred on his addiction which he had taken some steps to address and “…that the Court gave certain directions which have been fulfilled this morning by the presence of Mrs. Drinkwater and my solicitor has the additional information that was requested and I am somewhat taken aback by the course that events have now taken, that he has gone into custody for two years … where the Court had given an indication to Mr. Drinkwater that the Court was prepared to take a chance on him and all that was required that this additional information was to be provided to the Court and the Court had the probation and welfare report and had an opportunity to consider it before giving those directions and putting the matter back to today.”

The learned trial Judge indicated that he would not vary the sentence which he had imposed.

Submissions on behalf of the applicant

The ground of appeal against sentence, which counsel for the applicant described as his primary ground, is based on the contention that the applicant, and his counsel, had a legitimate sense of grievance by reason of the failure of the trial Judge to impose a non-custodial sentence on 26th June having regard to the circumstances and purpose of adjournment of the initial hearing on sentence which took place on 15th June. The essence of counsel’s submission was that the learned trial Judge, having adjourned the initial sentencing hearing for the purpose of hearing evidence from the applicant’s mother as to her willingness to pay for any course of treatment at Asheire and further information concerning the nature of the Asheire Centre and the courses of treatment which it provided, sentenced the applicant to a term of imprisonment without hearing evidence from the mother or having any or sufficient regard to the information provided in connection with Asheire. In particular it was contended that the applicant and his Counsel had, in the circumstances, been led to believe that a non-custodial sentence would in fact be imposed once the additional sentence and information was satisfactory. This, it was submitted was such as to leave the applicant with a genuine sense of grievance, a sense of injustice. It was submitted, as a matter of law, that this Court was obliged to remove that sense of grievance, legitimately felt by the applicant, even if, and this is the important principle, the sentence itself could not be considered too severe or wrong in principle. For this proposition counsel relied on a number of United Kingdom authorities, specifically decisions of the Courts in England and Wales. He referred to Blackstone’s Criminal Practice (2006 at p.1850) which, under the heading ‘Sense of Grievance’, the principle, based on that case-law, in particular R v. Gillam 1980 2 Cr. APP. R(S) 267, was set out in the following terms:

“If the sequence of events prior to a sentence being passed, taken in conjunction with the actual sentence, leaves the offender with a justifiable sense of grievance, then the court of appeal would feel obliged to remove that sense of grievance, notwithstanding that the sentence is not in itself too severe. The principle has been applied especially in the context of the lower Court ordering reports and thereby raising in the offender’s mind an expectation that, if the reports are satisfactory, he will be dealt with by non-custodial means. If the reports are good but the Court nonetheless passes a custodial sentence, the court of appeal will intervene. However, it is necessary to show that the offender’s hopes of a non-custodial sentence were legitimately raised. Thus, if the Court, on adjourning for reports, made it clear that it was making no promises as to the eventual outcome, the eventual sentencer is at liberty to ignore a recommendation in the report for a non-custodial sentence, and the court of appeal will concern itself solely with whether the sentence passed was appropriate in all the circumstances.”

Among the English authorities referred to by Counsel for the Plaintiff was R –v- Millwood 1982 4 Cr. App. R (S) 281. In that case the English Court summed up the policy which it felt it was appropriate to follow in the circumstances of the case before it in the following terms –

“Where a Court decides to request a report upon an offender’s suitability for community service thereby creates in the offender’s mind the expectation of a community service order if the report is favourable. If the report proved to be favourable then such an order is recommended the Court ought to act upon it.”

The effect of the English authorities is that a custodial sentence imposed in such circumstances, even if otherwise appropriate to the offence, should be set aside in order to remove the offender’s sense of grievance. The English authorities essentially referred to cases where the sentencing Court had made a clear statement that a community service order would be made on receipt of a satisfactory probation report and the sentencing was adjourned soley or mainly for that purpose.

Broadly speaking the duty of a Judge in this country when sentencing an offender is to impose a sentence whether custodial or otherwise, which is fair and proportionate to the offence having regard to its gravity (which includes its impact on any victim) and the circumstances of the accused including any mitigating factors.

Where the offender appeals against the sentence imposed by the trial Judge it is well settled law that this Court will not interfere with the sentence imposed unless it finds that the trial Judge erred in principle when imposing that sentence. That summarises the jurisdiction of this Court on appeals by offenders against severity of sentence.

The D.P.P. may also, of course, apply to this Court for the purpose of having the said sentence reviewed and increased on the grounds that it was unduly lenient. The position initially adopted by the D.P.P. in this case was to accept that the policy expressed in the English cases referred to should be followed here but seemed to retreat from that position when asked if that would mean that a custodial sentence imposed for a serious offence such as rape or sexual assault should always be set aside in order to eliminate the offender’s sense of grievance if at some point he had been led to believe that a non-custodial or lesser sentence might be imposed even though the actual sentence imposed was correct in principle. The D.P.P. also did not seem to feel that the policy referred to should apply in a case where the D.P.P. had in any event appealed on the ground that the sentence was unduly lenient. In this context that could arise where an offender had been led to believe that he would get a non-custodial sentence but in the event received a sentence of six or twelve months imprisonment which the D.P.P. sought to review before this Court on the grounds of undue leniency. In the end it was not quite clear where the D.P.P. stood on this issue which was not altogether helpful to the Court.

While the sentencing of offenders is governed by a range of legal principles, some of which have already been referred to by the Court, it may also be influenced by policy considerations such as the prevalence of a particular kind of offence, generally or locally and the need to deter it, or the special gravity which should be attached to an offence as indicated by the Oireachtas by way of statute. In short there may be societal factors to be taken into account when sentencing for a particular offence as well as general principles of law. Needless to say such societal factors are indigenous. In England and Wales there is a statutory body which sets out sentencing guidelines which may or may not include a range of societal considerations such as, perhaps, the need to favour non-custodial sentences where at all reasonably possible in order to avoid prison overcrowding. There may be a need to avoid the mischief of one Judge or Court giving an offender reason to believe that the ultimate sentence would be non-custodial only to find that at the end of the process he is being dealt with by a different Judge or a differently composed Court which imposes a custodial sentence. That happened in at least two of the English cases referred to by Counsel for the applicant and the involvement of different Judges or courts in the same sentencing process is something which would rarely arise in this country and then only in very exceptional circumstances. The foregoing observations are made for the limited but important purpose of stating that one must be wary of transposing sentencing policy of one country to another country.

Turning to the merits of the question raised, that concerns a legitimate grievance which it is submitted an offender may harbour if an earlier promise, expressed or implied, made by the sentencing Judge to impose a non-custodial sentence is not respected at an adjourned hearing, but a custodial sentence imposed instead. For this purpose it was submitted that where, in the course of sentencing, a Judge makes an express statement that a non-custodial sentence will be imposed if, at an adjourned sentence hearing, certain conditions are fulfilled, but nonetheless , notwithstanding the fulfilment of those conditions, imposes a custodial sentence at the adjourned hearing, then that custodial sentence should be set aside on appeal in favour of the non-custodial one in order to alleviate the offender’s sense of grievance. This, it was submitted, is the policy that should apply in all such cases, including this case, even if the sentence actually imposed is proportionate to the gravity of the offence and is otherwise correct in principle.

It would undoubtedly be very unsatisfactory should a Judge in the course of a sentencing process, having considered all the relevant facts then available to him, adjourn final sentencing pending the availability of such a matter as a probation officer’s report, with the declared intention that he or she would impose a non-custodial sentence in the event of the report being satisfactory but nonetheless imposed, at the adjourned hearing, a custodial sentence notwithstanding a satisfactory report. It may well be in this hypothetical case that a Judge on further reflection concluded that a custodial sentence was the only proper sentence that should be imposed notwithstanding a satisfactory probation officer’s report. In all probability the offender would have a legitimate sense of grievance of the manner in which the Judge had approached the sentencing.
According to Counsel for the applicant in such a case the offender may then appeal and expect his sentence to be set aside in all such cases, not because it was wrong in principle, but because he should be spared his sense of grievance at the manner in which the trial Judge dealt with it.

The Court does not consider that it would be sound either in principle or policy to treat the offenders “sense of grievance” as the sole and determinative factor in such an appeal.

Prosecutions are brought in pursuit of the public interest and the maintenance of the rule of law so that when the prosecution proves its case criminals are convicted and duly sentenced in accordance with law. While it might be inexact to refer to a public sense of grievance the fact is that when a person commits a criminal offence he or she has committed an offence against society, sometimes of the gravest nature, and they have full responsibility for finding themselves convicted before the Courts. That is one reason why public policy and the law requires the punishment of offenders according to the circumstances of each case. Victims and the public generally also have a legitimate expectation that those who have been convicted of a criminal offence should be subject to judicially imposed sentence, which may be a custodial sentence, as is appropriate for the crime, its gravity and the circumstances of the case. That is the task of the Judge who imposes sentence and this Court, in an appeal, thus confines itself to considering whether the sentencing Court erred in principle as regards the sentence imposed. In the view of the Court it would be wrong and disproportionate to allow a criminal offender’s sense of grievance in the sense referred to above to outweigh all these other considerations in every case.

Certainly, if a trial Judge in the course of the sentencing process, having considered all the circumstances of the case then before him, expressed a definite view that a non-custodial sentence would be imposed if certain conditions were fulfilled, such as the availability of a satisfactory probation report, but yet proceeded ultimately on quite a different basis and imposed a custodial sentence that would be a factor which this Court would be entitled to take into account in determining whether, in all the circumstances of the case, the sentence imposed was excessive or wrong in principle. In a case where this Court considered that the non-custodial sentence as originally and expressly envisaged would not have been wrong in principle or unduly lenient the offender’s legitimate sense of grievance at the manner in which he was sentenced could be considered as a ground for considering the custodial sentence as excessive or wrong in principle in all the circumstances.

The Court feels it should add that as a general rule all parties to sentencing hearing should bear in mind that a sentence is not final until the trial Judge has pronounced his or her final determination. Even then it may not be final in the sense that the Director of Public Prosecutions may have that sentence set aside in a successful application to this Court on the grounds of undue leniency. Furthermore in the course of the sentencing process a trial Judge, having heard the evidence offered but concerned that additional evidence should be adduced or wishing to give further consideration to what sentence should be imposed, may adjourn the making of his or her final order on sentence while leaving open a range of options as to what form the sentence may take. As already indicated, this, the parties should assume as being generally the position in the absence of a clear and unambiguous statement to the contrary by the sentencing Judge.

Although it should not be strictly necessary, it would be good practice, in order to minimise the risk of any misunderstanding if the sentencing Judge, when adjourning the question of sentence, was to state that the actual form or nature of the sentence is not yet decided and will not be so decided until the final hearing on sentence.

Circumstances of the Present Case

The next question is whether the applicant has shown that in this case it is legitimate for him to feel a sense of grievance, in the light of the sentencing procedure followed by the trial Judge, which this Court should take into account in deciding this application. To recall, the applicant, for the purpose of establishing that he had a legitimate sense of grievance, claims that what the trial Judge said must be interpreted as clearly stating that he would not impose a custodial sentence if the applicant simply provided proof from his mother that she would pay for his detoxification programme and further information on the Asheire Centre.

It was submitted on behalf of the D.P.P. that the trial Judge’s approach to sentencing and the words which he used could not be interpreted as an express or implied promise that the applicant would receive a non-custodial sentence on the basis of pursuing a residential course in the institution known as Asheire. In substance it was submitted on behalf of the D.P.P. that not only had the applicant not discharged an onus of proof on him to establish that he had a legitimate sense of grievance at the final sentence imposed by the trial Judge but that any reasonable construction of the trial Judge’s words were that he had not yet made up his mind finally on the course of action which he was going to take.

Counsel for the applicant submitted that the trial Judge, following submissions from the applicant’s Counsel that he receive a chance, clearly stated that he would like the further information on Asheire and hear from the applicant’s mother before he would “take a chance” and not before he would ‘consider taking a chance’. On this basis the applicant, it was asserted, was entitled to understand or expect that he would receive a non-custodial sentence. The fact that this did not happen left him, it was submitted, with a legitimate sense of grievance.

This matter falls to be considered in the context of the sentencing hearings as a whole that is to say the transcript of 15th June 2006 when the case was part heard and adjourned and 26th June 2006 when the final order was made.

At the hearing of 15th June 2006 the trial Judge first of all heard Garda evidence concerning the circumstances of the burglary offence and background information on the applicant including that he had 34 previous convictions. There followed a plea of mitigation on behalf of the applicant in the course of which Counsel pointed out, inter alia, that most of the applicant’s previous convictions were road traffic convictions and that he had not re-offended since June 2004. He went on to say that the applicant “had taken steps to engage with authorities in Asheire although he was not in a position to fulfil at least one of the pre-conditions for receiving treatment in Asheire that is to say to provide a drug free urine analysis but this was something which he was going to have to address. He wanted to ask the Court to give the applicant a chance or to “take a chance” on the basis that he would enter a detoxing programme in Asheire.” It was at this point that the trial Judge pointed out to the applicant’s Counsel the pre-admission requirements of Asheire namely (a) that detoxification be completed, (b) that he undergo drugs screening, (c) that the court case needs to be resolved before accommodation is offered (d) that he ring the following Friday and (d) on admission he bring a deposit of €2,500 and pay the balance through his account. He then raised the question with Counsel as to whether he wished to say anything about how the accused was going to finance this in any case. Counsel for the applicant, it will be recalled, responded by saying he could call the applicant who then gave evidence that his mother would pay the deposit amount and the amount of €30 per week for two years. He gave evidence that he was not estranged from his parents and that they were prepared to support him. The Judge then observed that the person who should really be telling him about how any programme was going to be financed was the mother herself whom he was then informed was on holidays. The Judge then indicated that he would have to know whether the mother was going to pay. He also stated that he was not familiar with the Asheire Centre. Counsel for the applicant at that point stated “Well if the Court wishes to put it back for reasons which may be twofold, (1) his mother and (2) his information from Asheire?” To which the Judge replied “I’d like to hear a little more about Asheire and a little more from his mother before I take, as you put it, a chance. The learned trial Judge then proceeded to adjourn the sentence hearing in the applicant’s case along with that of his co-accused to June 26th.

It is quite clear that from the course of the hearing on June 15th that the sentencing process in which the Judge was engaged was far from complete when he adjourned it and that it cannot be inferred that the phraseology used by the Judge either taken on its own, or particularly in its overall context, amounted to a definitive statement that he was going to impose a non-custodial sentence simply if the applicant could satisfy him that he could pay for the course at Asheire and provide some unspecified additional information on Asheire. He did not, of course, exclude that possibility. Indeed the words of Counsel for the applicant at the resumed hearing on June 26, when he sought to take issue with a custodial sentence being imposed by the trial Judge were “Well Mr. Drinkwater came into court, Judge, and on your directions there is information from Asherie and his mother is in court to say that she is going to pay €2,500 and the Court indicated that the Court was thinking about taking a chance on Mr. Drinkwater.” (emphasis added). Undoubtedly the Judge at the point of adjournment had not excluded the possibility of a non-custodial sentence from his thoughts but it has not in any sense been established by the applicant that the trial Judge had stated he would definitely approach it on that basis. Moreover, the question of interrupting and adjourning the sentencing process first arose at the suggestion of Counsel for the applicant after the Judge had queried the soundness of Counsel’s grounds in favour of a lenient sentence and it was really on that narrow aspect of the case that the matter was adjourned. At that point the applicant’s probation report had not been referred to in any detail although it was before the Court.

Counsel for the applicant had himself earlier adverted to the fact that even if the money was available the applicant would have to satisfy the pre-conditions laid down by Ashiere for entry on the course and in particular provide a drug free urine sample. These issues were also raised and pointed out to him by the trial Judge. There was no evidence put before the sentencing Court at any stage that the applicant was in a position to fulfil that and the other stringent pre-conditions for being admitted to Asheire, other than the payment of the fees, and it was unreal for the applicant to treat the Judge’s words as a definitive decision to impose a suspended sentence on the basis only of the applicant providing the evidence that his mother would pay for the course and some further information about the role of Asheire as an institution. The whole question as to whether he could in any event be admitted at all to Asheire had not been addressed by the defence. Consequently it is clear that, apart from considering matters in their totality, the trial Judge would have to have been satisfied on a number of matters before he came to a firm decision on the form of the sentence, which he clearly had not and could not have been at the time when the sentencing hearing was adjourned to June 26th.

On the resumption of the sentencing hearing on June 26th undoubtedly the applicant and his Counsel may have carried a hope that they might be able to persuade the trial Judge to take the lenient course. That is what convicted persons often hope and in this case there was perhaps some basis for such a hope in the light of what the trial Judge had said but no more than that. At the resumed hearing the sentencing process had moved on and the sentencing Judge went on to make specific reference to the probationary report that had been prepared in respect of the applicant, the effect of which has been referred to above, and clearly concluded that in the light of the negative nature of that report that relying on the applicant, to voluntarily pursue a course of treatment was not a reasonable option for him to adopt having regard to the record of the accused and the offence for which he was convicted and his history of drug addiction. That he was entitled to do. If the trial Judge had not been so quick to allow Counsel for the applicant to mend his hand, so to speak, as regards the point he was making at the time concerning the payment of fees, and considered fully the probationary report at that time, even though he obviously had a busy list, he might well have avoided the necessity for an adjournment but that is the most for which the learned trial Judge could be criticised. It does not, in the view of the Court, affect the principles upon which the learned trial Judge sentenced the applicant nor could it be said to have given rise to a legitimate sense of grievance of the kind alleged. In short the applicant has not established any basis from which this Court could conclude that he had a legitimate sense of grievance for receiving a custodial sentence.

In sentencing the applicant the learned trial Judge had regard to all the matters which he was required to have regard namely the nature of the offence, the circumstances of the accused and the mitigating factors in his favour. He has not been criticised in that respect in this appeal.

Being satisfied that the applicant has not established that he is entitled to claim a legitimate sense of grievance arising from the failure of the trial Judge to impose a non-custodial sentence that question does not further arise for consideration by the Court.

Having regard to the nature of the offence, the circumstances of the accused including his previous convictions and the mitigating circumstances, all of which were taken into account by the trial Judge, the Court is satisfied that the sentence imposed was not excessive and it involved no error of principle.

Accordingly, this application being treated as the appeal, the appeal is dismissed.

 

 

The State (McNally) v. O’Donovan

[1974] IR 275

 

O’HIGGINS C.J. :
I have read the judgment of Mr. Justice Walsh and I agree with it.

WALSH J. :
Although these two appeals were heard consecutively, the main point in each appeal is common to both and it is convenient to deal with both cases in one judgment.
The prosecutor, O’Driscoll, was convicted in the Central Criminal Court. On the 10th December, 1971, he was sentenced by the President of the High Court to a term of imprisonment of 12 months from the 12th September, 1971, and to another term of three years penal servitude to follow consecutively upon the sentence of imprisonmnt. On the 23rd March, 1972, the Court of Criminal Appeal dismissed O’Driscoll’s appeal against his conviction and sentence; but the point which arises in the present case was not raised before that court. On the 26th January, 1973, O’Driscoll applied unsuccessfully to Mr. Justice Butler in the High Court for an order under Article 40 of the Constitution, alleging that his detention was not in accordance with the law. O’Driscoll has appealed from that refusal by Mr. Justice Butler.
The prosecutor, Mcnally, was sentenced by the President of the High Court in the Central Criminal Court on the 29th September, 1971, to two years imprisonment to date from the 29th November, 1971. On the 18th February, 1972, in the Central Criminal Court, Mcnally was sentenced by Mr. Justice Griffin to a term of three years penal servitude following his conviction upon the charge of robbery, and the sentence of penal servitude was expressed to be consecutive upon the sentence of imprisonment imposed by the President of the High Court. Mcnally appealed to the Court of Criminal Appeal and his appeal was dismissed on the 29th July, 1972; the point which arises in the present appeal was not raised. On the 6th September, 1972, Mcnally applied unsuccessfully to Mr. Justice Butler for an order under Article 40 of the Constitution on the grounds that his detention was not in accordance with the law; in that application Mcnally raised the point to be considered in this appeal. The point which is common to each of these cases, and which has to be decided in these appeals, is whether a sentence of penal servitude can be passed to take effect in futuro. Mr. Justice Butler refused McNally’s application on the ground that, as he was still serving the two years sentence of imprisonment passed upon him, McNally’s detention was in accordance with the law whether or not the sentence of penal servitude could be questioned. On the 20th October, 1972, this Court refused upon the same grounds an appeal by McNally against this order of Mr. Justice Butler.
After the expiration of his two years sentence McNally applied to Mr. Justice Gannon in the High Court on the 29th August, 1973, for an order under Article 40 on the grounds that he was then serving the sentence of penal servitude which he said was not valid because it was one which was ordered to take effect in futuro. This application was refused by Mr. Justice Gannon, and it is against this refusal that McNally’s present appeal is being taken.
The applications to the High Court in O’Driscoll’s case and in McNally’s case were made ex parte and in each case the application was refused. The appeals come before this Court as appeals against refusals of ex parte applications. Therefore, the position is that the respondent has not been called upon to certify in writing the causes of the detention of either prosecutor. However, in view of the importance of the point of law involved, this Court assigned solicitor and counsel to each of the prosecutors to argue the point in this case and the respondent was also represented by counsel in each case in this Court.
The refusal by Mr. Justice Butler and the refusal by Mr. Justice Gannon were in each case based upon the reasons given by Mr. Justice Finlay in the case of The State (Jones) v. O’Donovan .4 In that case Mr. Justice Finlay delivered a reserved judgment on the point in issue, namely, whether the sentence of penal servitude can be given to take effect in futuro after the expiration of a sentence which the prisoner was currently serving. In Jones’s Case 4 the prisoner was not represented by counsel but the governor of the prison was represented by counsel and put before the court all the points which they considered to be relevant and of assistance to the court. Jones had been sentenced in the Central Criminal Court on the 22nd July, 1970, to two concurrent sentences of three years penal servitude by the President of the High Court; these sentences were expressed to take effect from the legal expiration of a sentence of six months imprisonment imposed on Jones on the same date by the President of the High Court in respect of a separate offence.
I have had the advantage of reading Mr. Justice Finlay’s judgment and of hearing the arguments advanced in this Court by counsel on behalf of both prosecutors and of counsel on behalf of the respondent governor. I agree with the reasoning of Mr. Justice Finlay that there can be no objection in principle to the making of an order for penal servitude to take effect after the expiration of a current sentence. Even if the matter was not governed by statute, I would hold that the claim made in each of the present cases on this ground was unsustainable. It is true that s. 2 of the Forfeiture Act, 1870, as amended, imposes, from the moment the sentence is imposed, certain civil disabilities and disqualifications which continue until the sentence shall have terminated. They would thus continue in force longer than the sentence itself where it is one to commence in futuro. That result, however unfortunate, is a statutory consequence in respect of which no discretion resides in the sentencing judge.
Mr. Justice Finlay referred to s. 20 of the Criminal Law (Ireland) Act, 1828, as also did Mr. Justice Gannon. It is unnecessary for me to set out the wording of that section5 but I think I should draw attention to the fact that it applies to the passing of a sentence for felony on a person already imprisoned under a sentence for another crime. In effect, in such a case, it permits of the imposition of a sentence of penal servitude to commence on the expiration of the current sentence of imprisonment or penal servitude, as the case may be. In each of the present cases the sentence of penal servitude passed upon the prosecutor was in respect of the commission of a felony; therefore, each sentence falls within the provisions of the Act of 1828. I have drawn attention to the limitation of the section because by statute (notably, in the Larceny Act, 1916) penal servitude may be imposed in respect of offences which are misdemeanours.
As this question of penal servitude is the only point in O’Driscoll’s appeal, I am of opinion that his appeal should be dismissed. For the reasons already given, I am of opinion that that portion of McNally’s appeal which relates to the question of the imposition of penal servitude should also be dismissed.
However, there is one other point which was argued in McNally’s appeal. It was submitted on behalf of McNally that the warrant which directed that he be kept in penal servitude is bad for uncertainty. The particular material which is pointed to as constituting the uncertainty is the direction to the governor of Mountjoy Prison to receive Mcnally into custody and to cause him to undergo the sentence as set out in the warrant in the following words:”to be kept to penal servitude for a period of three years, such sentence to take effect from the legal expiration of the sentence he is presently serving.” It is submitted that the warrant is bad for uncertainty because it does not, on the face of it, tell the governor when the sentence of penal servitude is to commence or, indeed, tell him anything whatsoever about the nature or duration of the sentence which McNally was currently undergoing. McNally’s present detention could not be held to be not in accordance with the law without first giving the governor of the prison an opportunity to certify in writing the cause of the detention. Under Article 40 of the Constitution6, the governor of the prison has a right to be given this opportunity. Therefore, the question is whether the matter can be disposed of on the material at present before the Court.
A somewhat similar point has already been considered by this Court: see In re Tynan .7 In that case Tynan had been sentenced by one court to a term of imprisonment expressed to take effect upon the termination of a sentence of imprisonment which had already been imposed by another court. The warrant in that case did not set out the length of the term of the first sentence. There was a reference to the court which had imposed the first sentence but not to the number of the bill of indictment. Tynan challenged the warrant on the ground that it did not set out on the face of it when the second sentence was to commence. This Court, by a majority opinion, rejected that contention. It held that there was sufficient information on the face of the warrant to enable the governor to ascertain, by reference to the conviction and the other records leading to the earlier sentence, the commencement date of the second sentence. In the present case, if it had nothing to go on except the warrant in respect of the three years penal servitude, the Court might find some difficulty in being able to say whether the sentence of penal servitude had yet begun to take effect or, if it had taken effect, at what date it took effect. Similarly, if the respondent had only that warrant before him he might be in the same difficulty. As it happens, however, Mcnally has put before this Court a copy of the warrant under which he was detained in respect of the first sentence, and it shows that the President of the High Court sentenced Mcnally to a period of imprisonment for two years from the 29th November, 1971. If the respondent had been asked to certify in writing the cause of McNally’s detention, the respondent would no doubt have produced this warrant also. However, the respondent has not been called upon, and the document has been produced by Mcnally himself. That warrant is dated the 10th December, 1971, and the second warrant referring to the penal servitude is dated the 18th February, 1972, and refers to the fact that the prisoner was at that time serving a sentence of imprisonment. The position is that, on the documents presented by the prosecutor Mcnally to this Court, there is no uncertainty or ambiguity about the question of when his sentence of penal servitude should begin to run or that, as a fact, he is presently undergoing it.
For these reasons I am of opinion that the prosecutor Mcnally is being detained in accordance with the law and that, therefore, his appeal must be dismissed.

HENCHY J. :
The question common to both of these appeals is whether there is jurisdiction, under either common law or statute, to impose a sentence of penal servitude to take effect in the future on the termination of a sentence of imprisonment which has been imposed on, or is being served by, the convicted person at the time of the imposition of the sentence of penal servitude.
The appellant in each case has been sentenced to penal servitude in those circumstances. Alleging that such a sentence is impermissible, they applied in the High Court ex parte for habeas corpus. Their present appeals are against the refusals of those applications. This Court has assigned solicitor and counsel to each prisoner for the purpose of the appeals. The refusals of the applications followed the decision of Mr. Justice Finlay in The State (Jones) v. O’Donovan .8 In that case it was held that sentences such as those in question here are authorised both at common law and under s. 20 of the Criminal Law (Ireland) Act, 1828.
As to the common law, if the offence was treason or felony the sentence had to take effect forthwith, whereas if the offence was a misdemeanour a sentence of imprisonment could be passed so as to take effect on the termination of a sentence of imprisonment already imposed. The House of Lords so stated the law in R. v. Wilkes .9 It was restated as to misdemeanours by Lord Selborne L.C. in the House of Lords in Castro v. The Queen 10 at p. 238 of the report as follows:”So far, therefore, my Lords, as relates to misdemeanors, and, subject to the question whether this authority would apply when the aggregate of the two punishments exceeds, in point of time, that which there would have been power to award for either offence alone, subject to that distinction, the case of Rex v. Wilkes 9 in this House is clear and distinct authority in favour of the proposition, that, when a man is found guilty of two misdemeanors, being distinct and separate offences . . . there not only a competent but the proper course was, and is, to pronounce a second sentence of imprisonment (assuming it to be within the power of the Court as to duration), to commence and begin after the expiration of the first.” Lord Selborne L.C. went on to point out, on the authority of R. v. Wilkes 11, that the aggregate term of imprisonment so imposed was not invalidated if it exceeded the maximum term that could be imposed for any one of such offences.
This common-law rule as to misdemeanours was extended by statute to felonies by s. 10 of the Criminal Law Act, 1827, in England and by s. 20 of the Criminal Law (Ireland) Act, 1828, in Ireland. The latter section12enacted that where a person sentenced for felony “shall be already under sentence, either of imprisonment or of transportation, the court, if empowered to pass sentence of transportation, may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment or transportation . . .” The section went on to provide, unnecessarily and merely out of caution, that the aggregate term of transportation might exceed the term for which that punishment could be otherwise awarded. The section fits the circumstances of the present appeals in that each appellant was under sentence of imprisonment. The court in each case imposed a sentence of penal servitude for a felony, to take effect on the expiration of the prior imprisonment. The section authorises the imposition of a sentence of transportation to take effect on the expiration of a prior term of imprisonment. Therefore, the question is whether the power to impose a sentence of transportation in futuroin those circumstances is to be read as including a power to impose penal servitude. The section explicitly provides that “the court, if empowered to pass sentence of transportation, may award such sentence for the subsequent offence.” Does “such sentence” include a sentence of penal servitude?
Penal servitude was substituted for transportation by the Penal Servitude Act, 1853, in certain cases. Section 2 of the Penal Servitude Act, 1857, enacted that no person from then on would be sentenced to transportation. The section proceeded to provide that any person who, if that Act and the Act of 1853 had not been passed, might have been sentenced to transportation, he would be liable to penal servitude for the same duration as the term of transportation to which he would have been liable if those Acts had not been passed. If the Acts of 1853 and 1857 had not been passed, prisoners in the circumstances of the present cases would have been liable under s. 20 of the Act of 1828 to transportation for the terms imposed. However, since 1857, the sentence authorised for such cases is penal servitude by reason of s. 2 of the Act of 1857. Section 20 of the Act of 1828, as thus adapted, therefore gives jurisdiction to impose the sentences of penal servitude in the present cases.
A question has arisen in the present appeals as to whether the jurisdiction to impose a sentence of penal servitude in futuro has been impliedly invalidated by later statutes. It has been pointed out that the effect of such sentences nowadays is not merely to impose for a period in the future a certain type of detention with its attendant disabilities but also to impose, from the time the sentence is recorded or pronounced in cases of treason or felony, the status of a convict with its inherent disabilities: see ss. 2 and 8 of the Forfeiture Act, 1870, and ss. 48 and 49 of the Statute of Limitations, 1957. However, such statutory changes do not go to the jurisdiction to impose such sentences. They affect only the quantum of the punishment which results from such sentences. A judge imposing such a sentence must take into account the fact that the statutory disabilities of a convict will attach to the person sentenced from the date of the imposition of the sentence until the term of penal servitude in the future comes to an end. The length of the term of penal servitude imposed and the length of the pending term of imprisonment would both have to be considered in an appeal alleging that the sentence was excessive. However, no such allegation arises in the present cases, which are concerned only with the jurisdiction to impose such sentences.
I am satisfied that s. 20 of the Act of 1828, as adapted, gave jurisdiction to impose the sentences in question in these appeals. But even if those sentences had been imposed erroneously, the appellants would not be entitled to be released on habeas corpus. Where the complaint is based on a technicality such as a defective sentence which can be remedied by the imposition of a correct sentence, the appropriate order is to direct the prisoner to be produced in the court of trial to be re-sentenced: see R. v. Mount 13 and Athanassiadis v. Government of Greece .14
Counsel for McNally has raised the further point that the warrant in his case is bad for uncertainty in that the sentence is expressed to take effect “from the legal expiration of the sentence he is presently serving,” without describing the latter sentence in more detail. Undoubtedly, if McNally was serving more than one sentence, or a sentence of doubtful validity, the consecutive sentence of penal servitude might be open to question on the ground of uncertainty. But his counsel concedes that when the sentence of penal servitude “to take effect from the legal expiration of the sentence he is presently serving”was imposed on the 18th February, 1972, the only sentence that McNally was then serving was one of two years imprisonment commencing on the 29th November, 1971. So there can be no question of ambiguity or uncertainty. For the foregoing reasons, I would dismiss both appeals.

 

The State (Jones) v. O’Donovan

Finlay J.

[1973] IR 329

 

FINLAY J. :”
6 Nov.

The application by the prosecutor for an order of habeas corpus is based on an assertion that two sentences of three years penal servitude (running concurrently and imposed on him by the President of the High Court in the Central Criminal Court on the 22nd July, 1970) are unlawful because they were directed to commence from the legal expiration of a sentence of six months imprisonment imposed on him on the same date in respect of a separate offence.
In obedience to an order of Mr. Justice Murnaghan made on the 12th October, 1972, the respondent has certified in writing the grounds of the prosecutor’s detention and has relied upon the warrant of the Central Criminal Court dated the 22nd July, 1970, and upon an order of the Minister for Justice dated the 3rd December, 1970, transferring the prosecutor from Mountjoy Prison, which was the prison nominated in the warrant, to Portlaoise Prison. It is clear that the sentence of six months imprisonment imposed on the prosecutor has expired, and that if his detention now is lawful it can be justified only by the two concurrent sentences of three years penal servitude.
The prosecutor was not represented before me by solicitor or counsel and did not enlarge on his original brief written submission. However, I have obtained considerable benefit from the very thorough and fair argument of Mr. Sheridan who, with Mr. Morris, appeared for the respondent. I heard this application on Monday, 23rd October, and again on Monday, 30th October. At the conclusion of the hearing I indicated that I was satisfied that the detention of the prosecutor was lawful and that his application must be refused, but stated that I would later give my reasons. This I now do.
The sentence of penal servitude is the creation of statute and is a direct substitution for the sentence of transportation: see the judgment of the President of the High Court delivered on the 31st July, 1972, in The State (Langan) v.Governor of Portlaoise Prison . As such, except for express statutory provisions, it could not be imposed in a manner which was not applicable to transportation. Therefore, the sentence of penal servitude cannot be imposed to commence at a date prior to the date on which sentence is pronounced: see The State (Attorney General) v. Poyning. 1 I take the origin of this apparently well-accepted rule to be that since no order for the transportation of a person on a date prior to the date of the making of the order could be valid, a prior transportation being impossible, no order for the substituted sentence of penal servitude to commence prior to the passing of sentence could be valid either.
However, there appears to me to be no objection in principle to the making of an order for transportation or the imposition of a sentence of penal servitude not to be carried out until some date in the future. This matter has not apparently been decided in Ireland, but it was considered in England in Castro v. The Queen .2 There two sentences of seven years penal servitude were imposed on two separate convictions for perjury”one to commence at the termination of the other term. This sentence was expressly challenged on grounds similar to those arising in this application and it was held by the House of Lords that such a sentence was valid without the necessity to rely for its validity on any express statutory provision. I am prepared to follow the reasoning of that decision.
By virtue of the provisions of s. 20 of the Criminal Law (Ireland) Act, 1828, I am satisfied that there is in addition express statutory sanction for the sentences imposed in this case.
Section 20 of the Act of 1828 provides as follows:””Whenever sentence shall be passed for felony on a person already imprisoned under sentence for another crime, it shall be lawful for the court to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced; and where such person shall be already under sentence, either of imprisonment or of transportation, the court, if empowered to pass sentence of transportation, may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment or transportation to which such sentence (sic) shall have been previously sentenced, although the aggregate term of imprisonment or transportation respectively may exceed the term for which either of those punishments could be otherwise awarded.” I am satisfied that the word “sentence” contained in the fourth last line of this section as printed in Dublin in the Statutes of the United Parliament, 1828, at p. 502, from which I have quoted, is a patent printer’s error for the word “person.”
It could be argued that the enactment of this section indicates that prior to it, and without it, a sentence of transportation could not be pronounced to commence at the termination of a sentence of imprisonment previously pronounced and that therefore, to be justified, a sentence of penal servitude now so pronounced must come within the section. I am satisfied that this is not so and that the section would in any event have been necessary for the purpose of clearly authorising such consecutive sentences which in aggregate exceeded the otherwise authorised terms. However, if the sentences pronounced in this case fell to be justified by this section I am satisfied that they are.

The sentence of imprisonment contained in the warrant was pronounced on the 22nd July, 1970, in respect of a conviction dated the 24th June, 1970”the sentence being expressed to run from the 24th June, 1970. The count in respect of which it was pronounced was that on Bill 8 of the County of Wicklow. The sentences of penal servitude were also pronounced on the 22nd July, 1970, and were”to be commenced and take effect from the legal expiration of the sentence imposed on Bill 8 of the County of Wicklow at the Trinity sittings of this Court, 1970.” Therefore, I must assume from the warrant that the sentence of imprisonment was first imposed and I am satisfied that, upon the imposition of the sentences of penal servitude, the prosecutor was a person who had been previously sentenced and was technically already imprisoned within the meaning of s. 20 of the Act of 1828.
In Castro v. The Queen 3 Lord Selborne at p. 240 of the report interpreted the provisions of s. 10 of the Criminal Law Act, 1827 (an Act which was confined to England and was the equivalent provision to s. 20 of the Act of 1828) as expressly authorising such consecutive sentences to be imposed at the same time. He did so in reliance on R. v.Cutbush 4 in which what was described as the practice of the judges was held to justify such an interpretation. Having regard to the conclusions I have reached above, it is not necessary for me to decide whether a similar position applies in Ireland.

Minister for Justice v Lipinski

[2016] IECA 145

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 12TH DAY OF MAY 2016
1. A single issue arises on this appeal as certified by the trial judge (Donnelly J.), after she made her order dated 24th June 2015 for the surrender of the appellant to Poland. That issue is whether the provisions of s. 45 of the European Arrest Warrant Act 2003, as amended, (“the Act”) apply where the appellant was present for his trial and sentence in the requesting state, was conditionally released from prison prior to the expiration of his sentence, absconded from that state in breach of the conditions attaching to his conditional release, and was therefore not present in court when an order was made thereafter revoking his conditional release since he left no address to which correspondence should be sent, and the authorities were therefore unable to notify him of the date on which it intended to make that revocation application.
2. The resolution of that issue is a matter of statutory interpretation against the background of Council Framework Decision 2009/299/JHA (the 2009 Framework Decision) which amended the ‘trial in absentia’ provisions contained in Council Framework Decision 2002/584/JHA (the 2002 Framework Decision) by inserting a new Article 4a into the latter, replacing Article 5(1). Section 45 of the Act of 2003 as originally enacted gave effect to Article 5.1 of the 2002 Framework Decision in as far as ‘in absentia’ matters were concerned, but was replaced by new s. 45 as substituted by s. 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act, 2012 in order to give effect to new Article 4a.

3. As originally enacted s. 45 of the Act of 2003 provided as follows:-

“A person shall not be surrendered under this Act if:-
(a) he or she was not present when he or she was tried for and convicted of the offence specified in the European arrest warrant, and

(b) (i) he or she was not notified of the time when, and place at which, he or she would be tried for the offence, or

(ii) he or she was not permitted to attend the trial in respect of the offence concerned,

unless the issuing judicial authority gives an undertaking in writing that the person will, upon being surrendered:-

(I) be retried for that offence or be given the opportunity of a retrial in respect of that offence,
(II) be notified of the time when, and place at which any retrial in respect of the offence concerned will take place, and

(III) be permitted to be present when any such retrial takes place.” [underlining added]

4. Following its amendment by substitution, s. 45 now provides:
“45. A person shall not be surrendered under this Act if he or she did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the European arrest warrant was issued, unless the European arrest warrant indicates the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision as amended by Council Framework Decision 2009/299/JHA, as set out in the table to this section.
TABLE

(d) Indicate if the person appeared in person at the trial resulting in the decision:
(1) Yes, the person appeared in person at the trial resulting in the decision.
(2) No, the person did not appear in person at the trial resulting in the decision.

(3) If you have ticked the box under point 2, please confirm the existence of one of the following:

3.1a the person was summoned in person on … (day/month/year) and thereby informed of the scheduled date and place of the trial which resulted in the decision and was informed that a decision may be handed down if he or she does not appear for the trial;

OR

3.1b the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial;

OR

3.2 being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;

OR

3.3 the person was served with the decision on … (day/month/year) and was expressly informed about the right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and the person expressly stated that he or she does not contest this decision,

OR

the person did not request a retrial or appeal within the applicable time frame;

OR
3.4 the person was not personally served with the decision, but

 the person will be personally served with this decision without delay after the surrender, and

 when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and

 the person will be informed of the time frame within which he or she has to request a retrial or appeal, which will be … days.

(4) If you have ticked the box under points 3.1b, 3.2 or 3.3 above, please provide information about how the relevant condition has been met.” [underlining added]
5. It can be seen from the above provisions that the old s. 45 referred specifically to the person not having been present at his trial and conviction, whereas new s. 45 refers to the person not having been present at the proceedings resulting in the sentence or detention order in respect of which the European arrest warrant was issued. Under the old s. 45 the issuing state was required to give an undertaking that upon surrender the person would be given the opportunity to have a retrial in his presence. In my view that clearly referred to a rehearing of the prosecution for the offence(s) in question, particularly given the reference to “conviction”. Following the introduction of the European arrest warrant regime in Member States on the 1st January 2004 experience showed that there was a less than uniform application of the ‘in absentia’ provisions of the 2002 Framework Decision, and this led to a lack of consistency and uncertainty in their application throughout the European Union. In an effort to address such issues the 2009 Framework Decision was adopted, and by substituting the new Article 4a into the 2002 Framework Decision, thereby replacing Article5(1), it introduced what is now essentially a box-ticking exercise to be completed by the issuing judicial authority where the person whose surrender is being sought on foot of a European arrest warrant was not present at “the proceedings resulting in the sentence … in respect of which the European arrest warrant was issued”. A correct completion of that exercise by the issuing judicial authority is intended to provide the executing judicial authority with the necessary assurance that upon surrender the person will be given an opportunity of a retrial where he was not present at “the proceedings which resulted in the sentence … in respect of which the European arrest warrant was issued”. This objective is clear from, for example, Recital (6) of the 2009 Framework Decision which states:
“The provisions of this Framework Decision amending other Framework Decisions set conditions under which the recognition and execution of a decision rendered following a trial at which the person concerned did not appear should not be refused. These are alternative conditions; when one of the conditions is satisfied, the issuing judicial authority, by completing the corresponding section of the European arrest warrant or of the relevant certificate under the other Framework Decisions, gives the assurance that the requirements have been or will be met, which should be sufficient for the purpose of the execution of the decision on the basis of the principle of mutual recognition.”
6. There are 15 Recitals in total. I will not set them out seriatim but many are relevant as a backdrop to a conforming interpretation of new s. 45 of the Act. It seems to me that these recitals evince a clear intention that what the person whose surrender is sought is entitled to is a “retrial” in the sense of a rehearing of the prosecution of the offences of which he has been convicted, where he was not present for his trial in certain circumstances. Given the use of the phrase “proceedings resulting in the sentence …” the right to a retrial includes the right to a rehearing of the sentence hearing where the person might have attended his trial, but was absent from a later sentence hearing of which he was not notified. The Recitals are replete with references to a “trial”, “rights of defence”, “right to a fair trial” and so forth. Specifically, Recital (11) states:
“Common solutions concerning grounds for non-recognition in the relevant existing Framework Decisions should take into account the diversity of situations with regard to the right of the person concerned to a retrial or an appeal. Such a retrial, or appeal, is aimed at guaranteeing the rights of the defence and is characterised by the following elements: the person concerned has the right to be present, the merits of the case, including fresh evidence are re-examined, and the proceedings can lead to the original decision being reversed.”
7. The question on this appeal is whether the right to a retrial, as contemplated by new Article 4a, and therefore new s. 45 of the Act of 2003 (as inserted), now includes the right to a rehearing of a subsequent application to revoke the suspension of the balance of a sentence where the person had been present when that sentence was imposed, the argument of the appellant in that regard being that s. 45 applies because it is nonetheless an application within “the proceedings” as such, at which he was not present, and it has resulted in an order for his return to custody.
Some factual background
8. On the 7th December 1998, the appellant was sentenced to a term of imprisonment of 15 years following his conviction in Poland on what I will loosely call 15 charges of assault causing harm. He was present for his trial, conviction and sentence hearing . On appeal that sentence was reduced to one of 10 years. He was not present for that appeal, but was aware of it and was represented there by his lawyer.

9. Some years later on the 20th September 2004, after he had completed part of his sentence, the Polish court made an order for his conditional release, and the suspension for a period of 3 years of the balance of his sentence. One condition of his conditional release was that he should remain under the supervision of his probation officer. Another was that any change of address must be notified to his probation officer. On the date of his conditional release some eleven months of his sentence remained to be served after time spent in pre-trial detention was taken into account. He failed to comply with the conditions stated and instead left Poland and came to Ireland in July 2006. According to the warrant the Polish court made an order quashing his parole on the 29th December 2006, thereby rendering him liable to serve the remaining part of the sentence imposed on the 7th December 1998, as reduced on appeal by order dated 21st September 2000.

10. Following the revocation of his conditional release the authorities were unable to locate the appellant, and proceeded to issue a European arrest warrant on the 15th December 2009. According to para. B thereof the decision on which the warrant is based is the sentence imposed on the 7th December 1998 as varied by the appeal decision dated 21st September 2000, on each of which dates he was either present in person or was legally represented having been aware of the date of the hearing. In other words, the decision on which the warrant is based is not the order made on the 29th December 2009 revoking the conditional release, and at which he was not present due to his absconding. That fact is central to this appeal since the appellant’s reliance on non-compliance with the provisions of s. 45 for his resistance to an order for his surrender is predicated upon a failure by the Polish authority to notify him of its intention to seek an order for the revocation of his conditional release after he had breached his supervision condition having absconded to this State in July 2006, and the fact that he was therefore not present when that particular order was made on the 29th December 2006.

11. In addition it can be noted that when completing the European arrest warrant the issuing judicial authority did not complete Paragraph D thereof, which applies in ‘in absentia’ cases, and indicated that this paragraph was not applicable. That of course does not determine the issue arising, since it involves the interpretation of national legislation, but it indicates at least that the Polish judicial authority does not consider the revocation order to be the kind of decision that brings into play the ‘in absentia’ provisions of the Framework Decisions in question, since it was not the decision by which the sentence of imprisonment was originally imposed.
The High Court Decision
12. In the course of her judgment, Donnelly J. referred to the extensive submissions that had been made to her in the High Court, and to a number of judgments both at first instance, and on appeals to the Supreme Court, where s. 45, and the circumstances in which it applied, both in its original incarnation and as later substituted, have been discussed and determined – albeit sometimes on an obiter basis.

13. A judgment to which she paid particular attention, and which she decided should be followed, is the judgment of Edwards J. in Minister for Justice and Equality v. Obst, ex tempore, 27th May 2014 where the same issue arose as arises in the present case. Ms. Obst was not present for an application to have her suspended sentence revoked. Donnelly J. noted that during the course of his ex tempore judgment, Edwards J. had referred to an earlier judgment given by him in Minister for Justice and Equality v. Surma [2013] IEHC 618 in which he had considered, inter alia, whether the amendments to s. 45 of the Act of 2003 had retrospective effect, and in which, when concluding that they had, he remarked that the amendments were “procedural in nature rather than substantive”. In the course of her very detailed consideration of Obst, Donnelly J. stated that even though it was a judgment delivered ex tempore, it was not one given on the same day as the hearing, but after the judge had taken time to consider the decisions made and the authorities opened to him. She concluded, using the words of Clarke J. in Kadri, that there were no strong reasons to show that the decision in Obst was incorrect. She considered the question of interpretation of s. 45 in the light of this Court’s judgments in Minister for Justice and Equality v. Palonka [2015] IECA 69, and that of Murray C.J. in Minister for Justice and Equality v. Tokarski [2012] IESC 6, and concluded that Palonka, while addressing s. 45, did so in a different respect which did not assist in the interpretation of the words “appear in person”, “the proceedings resulting in the sentence or detention order” or the word “trial” as they are used in s. 45 and the attached ‘Table’ to be completed by an issuing judicial authority in ‘in absentia’ cases.

14. Her conclusions are set forth in paras. 90-92 of her extensive judgment in the following terms:

“90. In my view, the use of the two distinct words, namely “proceedings” and “trial”, within the section raises a certain ambiguity. The word “proceedings” is a word which can cover an extremely wide variety of situations. An example is the case of the Minister for Justice v. The Information Commissioner [2001] 3 IR 43, where the High Court (Finnegan J.) held that in s. 46 of the Freedom of Information Act, 1997, the word “proceedings” meant a step in an action held in public. Even giving the word “trial” a broad interpretation, it is still a word which on its face applies to a more limited set of circumstances than is covered by the word “proceedings”. In that regard, I am of the view that the reference in Lawrence v. R as approved in Messitt to “the whole of the proceedings” meant that part of a trial on indictment commencing with the arraignment. Prior procedural appearances were not intended to be covered by that definition of trial. Yet, the definition of “proceedings” in s. 45 is not so easily clarified as automatically meaning any step, at any stage, in the process of a criminal trial.
91. In the light of the foregoing, there is no literal interpretation that will bring total clarity to the phrases that I have highlighted. Therefore, in accordance with the established jurisprudence, it is quite proper for this Court to interpret s. 45 as far as possible in the light of the wording of the purpose of the Framework Decision in order to attain the result which they pursue.

92. In those circumstances I am bound to follow the decision of Edwards J. in Obst on section 45. The learned judge had applied the principle of conforming interpretation to the section on the particular issue in this case. As stated already, there is no good reason to disagree with that decision. I therefore hold that under s. 45, a person has appeared in person at the proceedings resulting in the sentence or detention order in respect of which the EAW was issued where he or she was present at the trial in which his or her guilt has been determined, where he or she was present at the original sentencing hearing but where he or she was not present at the hearing at which a suspended sentence was revoked, not having received notification of that hearing. That finding is subject to the following observation: there may be a difference between the decision of Edwards J. in Obst that under s. 45 the proceedings referred to are those “at which your guilt or innocence is at issue” and the submissions by the Minister to the effect that it is also presence at “the appropriate sentence to be imposed” after the determination of guilt or innocence [sic]. That is an issue for another day.”

The parties’ submissions
15. Remy Farrell SC for the appellant has focussed on the change of wording adopted by the Oireachtas when enacting new s. 45 of the Act. In particular he submits that by adopting in the new section the phrase “did not appear in person at the proceedings resulting in the sentence …”, a substantive change and not a mere procedural change has been wrought whereby the rights of the person whose surrender is being sought have been altered and enhanced. It is submitted that this change must lead to a broader meaning, so that the concept of ‘in absentia’ must now extend beyond the actual trial and conviction hearing (see e.g. Minister for Justice, Equality and Law Reform v. McCague [2010] 1 IR 456), but to any application in the “proceedings” from which the person was absent but which leads to an order for his imprisonment. He includes within that broader definition of “proceedings” an application such as in the present case where an order was made subsequent to the passing of sentence, and which results in a suspended period of the sentence being revoked, since this is the decision that in reality will result in the imprisonment of the appellant, and therefore is a hearing which fair trial rights mandate an entitlement to be present. Put another way, it is submitted that without the hearing of the application to revoke the suspended part of the sentence, this European arrest warrant could not have been issued since there would be no custodial sentence to be executed, and therefore despite the fact that the issuing judicial authority has completed paragraph B of the warrant in a way that indicates that the decision upon which the EAW is based is the original sentence decision made on the 7th December 1998, it is in reality based upon the later decision to revoke the suspended period of that sentence which was made in the absence of the appellant, and therefore the warrant is invalid since the issuing judicial authority has wrongly indicated therein that s. 45 is inapplicable, and has therefore omitted to complete the Table required for the purpose of providing the necessary information to satisfy the High Court on the s. 16 application for surrender that “the matters required by section 45” are stated in the warrant, as required by s. 16(1)(c) of the Act.
16. Mr Farrell has submitted that the general ‘in absentia’ rule must be considered as one which requires that a person who was not present at any part of the “proceedings” which results in a decision to imprison him will not be surrendered, and that this otherwise general rule is modified only if certain conditions are fulfilled in accordance with new s. 45 of the Act, reflecting new Article 4a as inserted by the 2009 Framework Decision.

17. In so far as the trial judge followed the judgment of Edwards J. in Obst, Mr Farrell urges this Court to consider that Obst was wrongly decided and that it should not be followed. He points to the fact that in his decision in Obst (as appears from a transcript note of the ex tempore decision) Edwards J. has not set forth any authorities other than his own decision in Surma dealing with a question of retrospective application of the new s. 45 provisions.

18. This Court also heard submissions by Michael Lynn SC in relation to Article 6 rights under the European Convention on Human Rights, and Article 47 of the Charter on Fundamental Rights and their implications for the Court’s consideration of whether the right to a retrial extended to a rehearing of the application to revoke the suspended part of the appellant’s sentence. Mr Lynn placed particular reliance upon a judgment of the CJEU in I.B. Reference for a Preliminary Ruling – Case C-306/09 for his submission that fair trial requirements extend beyond the trial itself, and to a sentence hearing, and he supported Mr Farrell’s submission that the revocation hearing is in reality a sentence hearing to which fair trial rights must apply, and therefore is within the meaning of new Article 4a of the 2009, which respects fundamental rights, and is also within s. 45 of the Act.

19. I should perhaps explain that Mr Lynn was Counsel retained by another appellant whose appeal was listed and heard with the present appeal since the same issue arose in each appeal. It was made clear by Mr Farrell that those submissions by reference to the Convention and the Charter were also relied upon by Mr Lipinski. It can also be noted for the record that between the hearing of this appeal and delivery of this judgment Mr Lynn’s client’s sentence had been fully served since he was in custody here awaiting surrender, and in those circumstances the Court acceded to a request by the Minister to discharge that appellant as his surrender was no longer being sought by the issuing judicial authority. In those circumstances judgment is required to be delivered only in Mr Lipinski’s appeal.

20. Diarmuid McGuinness SC made submissions on behalf of the Minister. He does not disagree that under the 2009 Framework Decision and s. 45 the trial includes also the occasion on which a sentence is imposed. But while accepting that this is so, he highlights the fact in the present case that there is no doubt that the appellant was indeed present for his trial and for the hearing at which his sentence of 15 years was imposed and was legally represented at the appeal hearing which resulted in the reduction of that sentence to one of 10 years. He submits that the later application to revoke the part of that sentence that was suspended when the appellant was given early conditional release is not a hearing at which any sentence was imposed, but rather comprised an enforcement of the sentence imposed, and that this takes it outside the ambit of new Article 4a, and of new s. 45 of the Act.

21. Mr McGuinness referred to the judgment of Murray C.J. in Minister for Justice and Equality v. Tokarski [2012] IESC 61. He submits that this judgment makes clear that when a right to a retrial is referred to in the Framework Decision and s.45 it refers only to a rehearing of the question of the guilt or innocence of the person and/or the sentence imposed. In that regard he refers to what is stated by Murray J. at paras. 73-77 of the judgment as follows, albeit that it is stated by reference to Article 5.1 of the 2002 Framework Decision and not Article 4a as later inserted by way of substitution:

“73. The European arrest warrant in this case has been issued for the purpose of executing a sentence imposed by a Polish court.
74. Article 5(1) of the Framework Decision reads as follows:

“Where the European arrest warrant has been issued for the purposes of executing a sentence or detention order imposed by a decision rendered in absentia … ” (emphasis added)

75. Article 5 then refers to the fact that surrender may be subject to the condition that the issuing judicial authority give an assurance that the person, if surrendered, “will have an opportunity to apply for a retrial of the case in the issuing member state and to be present at the judgment”. (emphasis added)

76. In referring to the decision that imposed a sentence the reference is, evidently, to a judicial decision, and one which led to the imposition of the sentence. It seems to me that it would be entirely incompatible with Article 5 (1) of the Framework Decision if the phrase “tried for” in s. 45 was to be so narrowly interpreted that it only applied to a judicial determination where the court was required to hear witnesses on the merits of all the prosecutions allegations of fact pointing to the accused’s guilt.

77. The State argued that the use of the term “retrial” meant that Article 5(1) only referred to the full trial as to whether the facts or evidence pointing to the accused’s guilt should or should not be accepted. I do not think this logically follows from a reading of Article 1 of the Framework Decision. On the contrary, if the reference to a person being entitled to a retrial in certain circumstances has a bearing at all it is one which suggests that a judicial decision which results in the imposition of a sentence is a trial, since it is that decision which must be taken again if a person is surrendered pursuant Article 5(1) on the basis of an assurance that he would be offered a retrial. The same applies if the person has been adjudged to have been convicted and then sentenced on foot of a judicial decision and is surrendered on foot of assurances referred to in Article 5(1). Then it is that judicial determination of his or her guilt or the imposition of a sentence which must be retried.”

22. Mr McGuinness acknowledges that the above is stated in the context of Article 5(1) of the 2002 Framework Decision, but submits that there is no real difference of substance between it and new Article 4a, and that what is stated above by Murray C.J. is equally applicable since Article 4a is headed “Decisions rendered following a trial at which the person did not appear”, and in para. 1(d) thereof (and reflected in paragraph 3.4 of the Table as it appears set forth in new s.45) the right is to a “retrial”. It is therefore submitted that the appellant could not be correct to submit that he may not be surrendered in the absence of a guarantee of a rehearing of the revocation application, since such a rehearing would not be a “retrial” of his guilt or innocence or of the sentence imposed upon him, since the revocation order does not impose the sentence, but merely enforces the balance of it.
23. In support of these submissions Mr McGuinness has referred to the Recitals to the 2009 Framework Decision, and submits that nowhere among the 15 Recitals is there anything to suggest that the right to a retrial upon surrender was to thenceforth extend beyond a retrial of the guilt or innocence of the person surrendered and/or the imposition of the sentence.

24. In relation to the arguments put forward by the appellant in reliance on Article 6 ECHR and Article 47 of the Charter, Mr McGuinness points to the fact that Article 4a of the 2009 Framework Decision provided for an optional basis for refusal of surrender, as did Article 5.1 of the 2002 Framework Decision, and that in circumstances where it is an optional ground for refusal, there can be no breach of Article 6 rights. In fact, I understood the appellant’s Article 6 argument to be that he has a right under Article 6 to be present at the hearing of the revocation application, and hence he has an entitlement to an assurance of a rehearing of that application as a pre-condition to any order being made for his surrender, and therefore that to surrender him without such an assurance would constitute a breach of his Article 6 rights under the Convention. There is no doubt that if the appellant had not left Poland, and his whereabouts were known to the authorities, he would have received notification of the intended hearing of an application to revoke his parole, as it were. It can be presumed that this would have happened. However, I am satisfied that it does not come into consideration under s. 45 of the Act, whatever about s. 37 of the Act. It could potentially come for consideration under s. 37 since surrender may be prohibited under Part III of the Act, and s. 37 is within that Part. Section 37 provides:

“37(1) A person shall not be surrendered under this Act if:-

(a) his or her surrender would be incompatible with the State’s obligations under (i) the Convention, or (ii) the Protocols of the Convention,
(b) …,

(c) … ”.

25. However, s.37 is not in play on this appeal. Donnelly J. as part of her consideration of the s.16 (1) surrender application considered, as she must, the appellant’s submission that it would breach his Article 6 rights to surrender him to Poland where he had not been given notice of the application for revocation. She concluded that he had not established substantial grounds for contending that his surrender would amount to a real risk that he would be exposed to a breach of his Article 6 rights (see paras. 100 – 102 of her judgment), and that his surrender was not prohibited under Part III of the Act (see para. 11 of her judgment). Her conclusions in this regard do not arise for consideration on this appeal, since they are not within the point of law certified for this appeal.
Conclusions
26. The extensive written and oral submissions on this appeal belie the rather straightforward issue which arises for determination. It is essentially a question of statutory interpretation assisted in part by reference to the terms of the 2009 Framework Decision, and indeed its predecessor. The question arising, as certified, is whether the provisions of s. 45 as amended are engaged in circumstances where a person was present for the hearing of his guilt or innocence and the imposition of his sentence but was not present for, or notified of, the application to activate the balance of the sentence which was in effect suspended when he was given conditional early release. In short, my view is they are not, and I will endeavour to explain why I believe that to be so.

27. The appellant is incorrect in my view that the changes wrought by the 2009 Framework Decision and specifically the insertion of new Article 4a into the 2002 Framework Decision were substantive in nature and not merely procedural. There is nothing in the wording to indicate an enlargement of the type of decisions for which the assurance of a retrial upon surrender is required. The objective was to bring greater clarity to the existing arrangements, and not to alter them in a substantive way. I note that the heading of the 2009 Framework Decision speaks of “thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial” [emphasis added]. Recital 2 refers to the fact that previous Framework Decisions “do not deal consistently with the issue of decisions rendered following a trial at which the person concerned did not appear in person” and that “this diversity could complicate the work of the practitioner and hamper judicial cooperation”. Recital 3 noted that the 2002 Framework Decision permitted refusal of surrender, and went on to note that it also allowed authorities “to require the issuing judicial authority to give an assurance deemed adequate to guarantee the person … that he or she will have an opportunity to apply for a retrial of the case … and to be present when judgment is given”. That Recital went on to state that “the adequacy of such an assurance is a matter to be decided by the executing judicial authority, and it is therefore difficult to know exactly when execution may be refused” [emphasis added].

28. It is clear from Recital 2 that the problem was not as to what decisions could be the subject of the assurance as to a retrial, but rather uncertainty as to what constituted an adequate assurance. It was this aspect that lacked certainty, and which the new Framework Decision addressed. Recital 4 makes no reference to expanding the categories of decision, but states that “this Framework Decision is aimed at refining the definition of such common grounds allowing the executing judicial authority to execute the decision despite the absence of the person at the trial, while fully respecting the person’s right of defence. … ”. Recital 6 states that the Framework Decision sets out conditions under which the execution of a decision rendered in absentia should not be refused, and that when one of those conditions is indicated by the issuing judicial authority as being met (by marking the appropriate section of the warrant) this “gives the assurance that the requirements have been or will be met, which should be sufficient for the purpose of the execution of the decision on the basis of mutual recognition”. Recitals 7, 8, 9 and 10 all refer to either “a decision rendered following a trial”, “the right to a fair trial of an accused person”, or “the scheduled date of a trial”. The clear context of these Recitals by reference to the ordinary meaning of the words used, and as commonly understood by all, is that the trial or retrial relates to the original decision as to guilt or innocence and/or the sentence imposed thereafter, or the rehearing of those matters. If there was any doubt about this, it can be quickly assuaged by the words of Recital 11 which state, inter alia: “… Such a retrial, or appeal, is aimed at guaranteeing the rights of the defence and is characterised by the following elements: the person concerned has the right to be present, the merits of the case, including fresh evidence are re-examined, and the proceedings can lead to the original decision being reversed” [emphasis added].

29. Further clarification in this regard can be gleaned from the CJEU in its judgment in I.B. Reference for a Preliminary Ruling – Case C-306/09 to which I have already referred. The facts of that case are unusual and quite complex, and it is unnecessary for present purposes to describe the fact save to note that prior to an appeal to the Romanian Supreme Court, two lower courts had permitted the convicted person to serve a sentence of four years not in prison but “at his workplace”. What that means in practice I do not know, but the Supreme Court of Romania in due course altered the sentence by requiring that he serve it in prison. Before he was imprisoned on foot of that ruling he had absconded to Belgium. A European arrest warrant was issued and sent to Belgium so that I.B. could be surrendered. The Supreme Court hearing in Bucharest had taken place in the absence of I.B. and an issue arose as to the applicability of Article 5.1 of the 2002 Framework Decision. My single reason for referring to the judgment of the CJEU to whom the Belgian court had made a reference concerning, inter alia, the proper interpretation of Article 5.1 is because of what the CJEU states at para. 57 of its judgment:

“57. Given that the situation of a person who was sentenced in absentia and to whom it is still open to apply for a retrial is comparable to that of a person who is the subject of a European arrest warrant for the purpose of prosecution, there is no objective reason precluding an executing judicial authority which has applied Article 5(1) of the Framework Decision 2002/584 from applying the condition contained in Article 5(3) of that Framework Decision.”
30. While I appreciate that the appellant argues that the range of decisions captured by the in absentia provisions must now be considered to have been deliberately expanded by the use of the word “proceedings” in new s. 45 of the Act, that word does not appear in Article 4a inserted into the 2002 Framework Decision. It refers to “at the trial resulting in the decision” as already stated, and it is against the wording of that new Article that new s. 45 falls to be interpreted in accordance with the decision Pupino (Case 105/03) [2005] E.C.R. 1-5285) in circumstances where it is argued to be ambiguous or otherwise unclear. The wording of Article 5(1) in the original 2002 Framework Decision is not substantively different to Article 4a. Nothing in it indicates that the concept of a retrial was extending beyond what it had been under Article 5(1). The CJEU in I.B. has explained that a person who has been convicted in absentia and who is entitled to a retrial upon surrender “is comparable to that of a person who is the subject of a European arrest warrant for the purpose of prosecution”. It cannot be said that Mr Lipinski is in that position when all that he was absent for was an application to have enforced against him that portion of his sentence which had been suspended upon his conditional release. It is so different a context that it would require very specific words if the ‘in absentia’ arrangements were intended to be expanded by Article 4a, and very particular words in s. 45 if that was the intention of the Oireachtas, even if Article 4a is seen to be silent on the matter.
31. Article 4a commences with a heading which reads “Decisions rendered following a trial at which the person did not appear in person”, and then proceeds at para 1. to provide that surrender may be refused in a case where the warrant seeks surrender for the purpose of executing a custodial sentence or detention order “if the person did not appear in person at the trial resulting in the decision” unless the warrant states at least one of a number of alternative matters is satisfied, and a Table is provided so that the box-ticking exercise can be carried out in order to indicate the matters applicable to the case in question. But at all times it speaks of the “trial”. I accept that a reference to “trial” must include the conviction and the sentence decision, but I see no possible way on the basis of an ordinary use of language and its commonly understood meaning how “trial” can be seen as extending beyond that and as far as an application to revoke parole or lift a suspended part of a sentence, or however one wishes to describe what happened in this case which is described in paragraph F of the warrant as follows: “[The Court] quashed the conditional release of serving the remaining part of the penalty granted to the convict by virtue of the decision of 20th September 2004, and ordered execution of the remaining part of the penalty imposed by virtue of the enforced judgment … of 7th December 1998”. In other words, the suspension was lifted and the court ordered execution of the balance of the sentence which had already been imposed. It did not impose the sentence. It enforced the existing sentence imposed when the appellant had been present – in the sense that he was legally represented at the appeal hearing when the 15 year sentence was reduced to one of 10 years as already described.

32. As stated, the appellant has submitted that the decision to revoke the suspension should be considered a decision in respect of which he should be entitled to a retrial or rehearing since realistically it is that decision which has resulted in his surrender being sought so that he can return to prison. While that may reflect the reality, one must still be guided by s. 45 of the Act and, if necessary by Article 4a and the two Framework Decisions generally as to whether surrender must be refused in the absence of the completion of the Table within the section. Section 16 (1) enables the High Court to make an order for surrender provided that a number of matters are established as set forth in its sub-paras. which include at (c) where “the European arrest warrant states, where appropriate, the matters required by section 45 …” [emphasis added]

33. Much is made by the appellant of the change in the wording of new s. 45 and in particular its reference to not appearing at “proceedings” instead of, as in old s. 45 “not [being] present when he or she was tried for and convicted …”. But it is not correct to focus on the word “proceedings” in new s. 45. One must read more than that in order to see the full context which can be gleaned from the words “did not appear at the proceedings resulting in the sentence … in respect of which the European arrest warrant was issued …”. There is no doubt that “the proceedings resulting in the sentence” can only refer to the sentence imposed in December 1998, as adjusted downwards on appeal. He was present and/or legally represented at those proceedings. If he was not present at the proceedings when the sentence was imposed, s. 45 would undoubtedly be engaged. I reiterate that the lifting of a suspension of an imposed sentence is not to be confused with the imposition of that sentence in the first place. To find in favour of the appellant’s submission in this regard would require the reading into new s. 45 words that simply are not there. In my view, as I have said, the word “proceedings” must be read in tandem with the words that follow, namely “resulting in the sentence or detention order in respect of which the European arrest warrant was issued”. The sentence or detention order in respect of which this warrant was issued is the sentence imposed on the 7th December 1998 as later adjusted to 10 years on appeal. No sentence was imposed by the revocation order made, and the warrant does not state in paragraph B thereof that this is the order on which the warrant is based. In so far as it is necessary to say so, I believe that this interpretation of “proceedings resulting in the sentence or detention order in respect of which the European arrest warrant was issued” is one which conforms to the objectives of the Framework Decision, and does no violence to s. 45. This interpretation is not therefore contra legem.

34. I have reached my own conclusions on this appeal and without reliance upon the judgment of Edwards J.in Obst. But I have no reason to disagree with the basis on which he arrived at a similar decision on the facts of that case.

35. For the above reasons I consider that the trial judge was correct to order the surrender of the appellant, and I would dismiss this appeal.

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.

DPP v Linda Mulhall

Court of Criminal Appeal, February 8, 2008
Judgment of the Court delivered this 8th day of February 2008 by Macken, J.

This is an application for leave to appeal brought on behalf of the Applicant. The appeal is against severity of sentence only. The applicant and her sister, both in their twenties, were each charged with the murder of a Mr. Noor. He was the companion of the applicant’s mother, and she, the mother, at the time resided at an apartment in Ballybough in Dublin, where the events the subject of the trial took place. The applicant was found guilty of manslaughter by the jury at the end of the trial in October 2006 and, some weeks later in early December 2006, was sentenced to 15 years imprisonment.
The Background Facts
This application is based on the submission made on behalf of the applicant that the learned sentencing judge erred in law in sentencing the applicant without having before him certain probation and psychological reports, requested by counsel for the applicant and directed by the trial court to be made available. In particular, it is contended that, absent the reports, the learned sentencing judge could not have constructed a sentence appropriate to the applicant, and in consequence erred in law and imposed an unduly harsh sentence.
For the purposes of understanding the case made on behalf of the applicant, it is necessary to set out in some detail the background to the crime and the rather grim events in question, the events leading up to the arrest and trial of the applicant and her later history in relation to the events.
The evidence, as concerns the applicant, is that in or around the 20th March 2005, she, her sister and their mother, who had previously resided in Tallaght with her now deceased husband, had arranged to meet in Dublin City. According to the statements made by the applicant, admitted in evidence as against her, prior to leaving Tallaght, she and her sister had been drinking vodka, and met up with their mother in Dublin, who was in the company of the deceased. The applicant felt her mother was “tipsy”. The deceased purchased a bottle of vodka, towards the evening time, and the applicant’s mother purchased bottles of coca cola, and they commenced drinking the vodka and coca cola in the street. The applicant had ecstasy tablets, and she, her sister and her mother each took one, and the mother put one into the drink of the deceased, although according to some of the applicant’s statements, she or they may have had several more tablets, as she had only one left out of twelve or so when she got home. The applicant’s mother and the deceased started arguing, and the group went up O’Connell Street with the argument continuing, and into the apartment in Ballybough, which was the first occasion on which the applicant had been there.
The evidence suggests that highly inappropriate comments were made to the applicant by the deceased which disturbed her greatly. He had a grip of the applicant and the applicant’s mother started to roar at the deceased, and all appeared to be shouting, but he retained his grip around the applicant. According to the applicant’s statements the sister and the mother tried to get him to stop and he then started pushing the mother, and drew his finger across the mother’s throat. The applicant said she thought he was going to kill the mother. The mother pushed the deceased towards the bedroom and the sister picked up a Stanley blade and cut him on the throat, he staggered into the bedroom where there were bunk beds, and he more or less fell into them. The applicant thereupon picked up a hammer from the sink and hit the deceased on the head, and in the course of interviews, said she had done so “loads of times, a good few times”. He fell on the ground and she hit him again. He was stabbed several times by the sister, who eventually said he was dead. The mother, the accused and the sister were all screaming at this time, and the mother said to “get him out, get him out”. The applicant and her sister then dragged the deceased into the bathroom, where the cutting up of the body took place, each sister taking turns with the hammer and/or a knife, the applicant cutting off his penis. The mother the sister and the applicant walked to the nearby Royal Canal, where they disposed of the body parts, apart from the head. Later the mother, the sister and the applicant took the bags, the knives and the head to a park in Tallaght. The head was put in a shallow hole and the mother threw the knives into water or lake in the area. Subsequently the applicant removed the head from the park, on at least one occasion, and eventually took it to another location, in Brittas, County Dublin, hit it again with a hammer and buried it in that new location. Despite the fact that the applicant took the gardaí to these locations, the head of the deceased was never found.
Shortly after the torso and other body parts were found in the canal in late March, the torso was identified by a person who recognized the tee shirt the deceased was wearing, and the deceased was then identified. In August 2005, after enquiries were commenced which involved the applicant and her mother, the applicant was interviewed but she denied any knowledge of the events. A short time later again she contacted the gardaí voluntarily, and effectively confessed or admitted her role.
The reason for setting out the above, extremely grim details, is because of the nature of the application which is now made, and which forms the basis for the grounds raised for leave to appeal against severity of sentence. During the course of the sentencing hearing, the evidence of the gardaí was that the applicant had been of considerable assistance to them in taking them to places where events took place, including where at the canal bank the body was put into the water, how the events unfolded, who – according to the applicant – took part in the killing of the deceased, how his body was dismembered, her role (and the roles of others) in that, and in giving information concerning the sports bags, the disposal and replacement of these, the disposal of the head, and so forth. The garda witness also gave evidence that the applicant was very remorseful of her role in the events, from the commencement of her voluntary interaction with them, that she was extremely distressed about the events, had difficulty sleeping at night, her children had suffered considerable violence at the hands of their father, her then partner, she had at the time three rather young children to whom she was devoted, and several other matters frequently exposed or explored in the course of sentencing hearings. All these matters are ones which counsel for the applicant says would have been the subject of the requested reports.
At the end of the jury trial, the sentencing hearing was adjourned. It is agreed between the parties that this was on the basis that the applicant’s legal team had requested that the trial judge might direct that certain psychological and probation reports be secured prior to sentencing. The court directed such reports to be made available, and in the usual way, the learned sentencing judge thereupon adjourned the sentencing hearing. The matter then came on for hearing on the adjourned date. According to counsel for the applicant it would appear her legal advisors were of the view that an application for an adjournment would be made on behalf of the respondent, apparently for the purposes of securing the attendance of a member of the victim’s family, who would have to travel from Africa. It is said further, on behalf of the applicant, that it is not unusual for a probation officer to be in touch with the gardaí involved in the case with a view to ascertaining the up to date position as to a likely hearing date for sentencing.
In the present case, it is evident from a report of a probation officer furnished to the learned sentencing judge on the adjourned date, and to this court, that several visits, probably three in all, had been made by the probation officer to the prison where the applicant was being held with a view to interviewing her, but that on the first two occasions it had not been possible to carry out any useful interview due to the applicant being in some distress. On the third occasion, so far as can be gleaned from the material available, the interview was held in a satisfactory manner. However, a full report was not concluded (nor perhaps even embarked upon) in a manner appropriate or sufficient to be presented to the sentencing judge on that adjourned date, due to the belief of the probation officer that the sentencing hearing would be adjourned. Before this court there was no indication as to whether or not any psychological report had been sought or secured, and none appears to have been before the sentencing judge.
The sentencing hearing proceeded with the report, such as it was, of the probation officer to hand, and although counsel for the applicant indicated that he was unhappy with the absence of a full report and would prefer if the hearing were adjourned in the circumstances, he did not formally apply for an adjournment. The existing report did not explain in any sufficient detail the results of any interview, and reached no conclusions and did not express any view on the condition of the applicant, nor on her background in any detail, nor as to her family or other history, or her then condition – if this required mention – nor did it seek to suggest or make any recommendations or reach any findings from the point of view of the effects on her of the grim events she had been involved in, nor as to her future.
The learned sentencing judge proceeded to sentence the applicant, indicating that he does not in general adjourn such hearings indefinitely. Having considered the report, such as it was, and having regard to several matters properly taken into account by him for the purposes of sentence, such as the applicant’s prior good behaviour, her assistance to the gardaí, her remorse and so forth, as well as the seriousness of the crime, he sentenced the applicant to 15 years. It is not necessary at this stage to set out in detail the approach taken by the sentencing judge to the construction of the sentence.
Counsel for the applicant submits that it is a fundamental right of the applicant to have before the sentencing judge reports from a probation officer, and/or from psychologists or psychiatrists or others skilled in such matters, which may be considered by her advisers to be appropriate to have before the court imposing sentence, and referring to matters peculiar to the applicant, such as the existence of young children in her care, the possibility of the suspension of some future part of the sentence, her remorse and how the crime had affected her, and other relevant information. He contends that, given he had requested, on behalf of the applicant, that such reports from a psychologist and a probation officer be directed to be available prior to sentencing, her right to a fair trial – including her right to a fair sentence hearing which is an integral part of the trial – had been unlawfully impinged upon. The learned sentencing judge could not lawfully, in such circumstances construct a sentence which was tailored, not simply to the crime, however serious this was, but also to this particular applicant, being obliged, on well established case law, to have regard, inter alia, to the personal circumstances of the person being sentenced. The learned sentencing judge had, he argued, committed an error in principle in proceeding with the sentence hearing in the absence of such reports.
Counsel for the respondent, on the contrary, submits that it is clear from the sentence hearing as recorded in the transcript that the learned sentencing judge took into account all matters which were germane to the issue of sentencing. Further he argues that it is not possible to say there had been any error in principle on the part of the sentencing judge, since the sentence imposed, taking into account all the matters which had been considered by the sentencing judge, might not have been any different had such reports been before him.
The conclusion of the court is as follows. It is not a fundamental principle of law, as contended for by counsel for the applicant, that in each and every case in which an accused seeks to do so, the sentence hearing must be adjourned to facilitate the provision of such reports as an accused wishes to have available. That right must at all times depend on the case and on its particular features, factors well appreciated by sentencing judges, including the sentencing judge in the present case. That said, however, there are cases in which it is undoubtedly true that the crime is of such a nature and the convicted person is of such a background, or of such characteristics, traits or personal disposition, apparent from the trial itself or from evidence given in that regard and including those arising from the events leading to the trial, that it would be both inappropriate, and legally improper, to proceed with the sentencing of an accused, without relevant report(s) being available, and ordinarily available in good time, for the sentencing hearing. In the opinion of this Court, this is such a case, notwithstanding this court’s acceptance of a judge’s proper desire to bring finality to a case.
It is not necessary to lay down fixed or rigid rules as to when such reports are appropriate, and if not available for good reason, when a sentencing hearing should not proceed in their absence. In the present case there are several reasons why, in order to do justice to the accused in constructing an appropriate sentence, the hearing ought to have proceeded only upon the receipt of the reports which had been directed to be made available. Firstly, the learned sentencing judge had agreed, at the request of counsel for the applicant, to adjourn the matter pending receipt of reports from the probation services, and from a psychologist. It must be assumed therefore that the learned sentencing judge accepted it was appropriate or desirable to have these before sentence was imposed. Secondly, and while noting that the report, at least a full report arising from what was apparently a successful interview with the applicant, ought to have been before the learned sentencing judge on the relevant day (instead of the rather short letter indicating that it would be helpful to have an adjournment to provide such a report), it seems clear that its absence was due overwhelmingly to the erroneous belief on the part of its author that an application would be made on the part of the prosecution to adjourn the sentencing hearing to facilitate a victim impact statement being made available. Even if the belief was misguided as to whether such an application, if made, would be acceded to, the belief itself appears to have been genuinely held. The absence of the report was not due to mala fides on the part of the person who would have prepared it, nor to any deliberate act on the part of the applicant. Thirdly, having regard to the extremely unusual case, its background and its seriousness, the applicant’s background and her involvement in the death of the deceased and its immediate aftermath, it is likely that such a report(s) would address matters particularly germane to sentencing. Finally, it might be considered especially important to have such a report(s) if the sentencing judge, as here, envisaged imposing a lengthy sentence.
As to the argument of Mr. O’Connell, Senior Counsel for the respondent, that it is not possible to say, in the absence of such a report, that the sentence was unduly severe, that is true in logic. But that submission does not resolve the issue, because the true issue is whether, in this particular case, having regard to the particular circumstances of the crime and the personal circumstances of the applicant, she ought to have been entitled to have before the court reports which were not before the court due to no deliberate fault on her part, and whether, in the absence of such a report(s), the court could construct a lawfully appropriate sentence.
In light of the severity of the crime, its nature, and the evidence tendered by gardaí at the sentencing hearing as to the particular circumstances of the applicant, this court concludes that it would not be possible in this case to have full regard for the established principles of sentencing, without the reports sought to be procured on behalf of the applicant. In that sense, and in that sense only, the learned sentencing judge erred in law.
The court refrains at this time from passing any comment on whether the sentence actually imposed is or is not unduly severe, or on the question as to whether any part of the custodial sentence should or should not have been suspended. It is both inappropriate and impossible to reach a conclusion on these matters without having the benefit of the above referred to reports. This court, now being the sentencing court, notes that both psychological and probation reports were to be made available, and that, peculiarly, only a probation report is referred to in the sentence hearing, it being clear this was the only report available. Since both were sought, on the application of counsel for the applicant, both should now be procured and made available to this court as soon as possible.
In the circumstances the court will adjourn this application for leave to appeal pending receipt of the report(s). This court will then determine the arguments on severity of sentence in light of the reports to be furnished, and will hear counsel as to the appropriate time within which they can be made available.

 

 

 

DPP v Doolan

[2014] IECA 22
Judgment of the Court (ex tempore) delivered on the 18th day of December 2014, by Mr. Justice Birmingham
1. In this case the appellant, Mr. Doolan appeals against the severity of a sentence that was imposed on him in the Circuit Court on the 19th November, 2014. On that occasion he received a sentence of two years imprisonment, with one year, the final year, suspended in respect of the offence of robbery. The robbery in question is one that occurred at Hacketts Bookmakers on the 5th December, 2013.

2. The appeal is put very clearly and firmly on the basis that this is a case that could and should have been dealt with by way of a community service order or by way of an entirely suspended sentence and it is said that the error in principle was to require the appellant to serve a custodial sentence.

3. There are really two arguments that are made. The first is that there was an insufficient distinction drawn between the appellant’s situation and the situation of a co-accused Mr. Fitzpatrick and we will return to Mr. Fitzpatrick’s role in this in a moment. The second argument is that the consideration that was given was inadequate because it did not sufficiently address the prospects of dealing with this other than by way of an immediate custodial sentence. In that regard attention is drawn to the fact that the defence at the arraignment stage, when the plea of guilty, which was an early plea, was entered, had sought a probation report and that was an issue that was returned to at the time of the sentencing hearing.

4. The trial judge did not accede to the application for a probation report and instead listed the matter for sentence at a date when it would not have been possible to have a probation report ready and it is said that the failure to seek and avail of a probation report constituted an error in the sentencing process.

5. The basic facts of the underlying offence can be stated briefly. The position is that on the 5th December, 2013, Ms. Tracey O’Mahony who is a lady in her 50s was working at Hacketts Bookmakers in Cork. While she was on duty, a lone male, who was Mr. Fitzpatrick, entered and shouted at her demanding money. He had covered his head with a hood and was wearing a scarf. He leaned over the counter and demanded money and she gave him a sum of €900. His response was to say that that was not enough and she then gave him another bundle of €5 notes. While this was going on, Mr. Fitzpatrick was poking at her with a stick and he was generally aggressive and it is clear that the incident has had a significant effect on Ms. O’Mahony, she had been working in that general role for a number of years and she had found this a particularly troubling, distressing and traumatic incident.

6. Witnesses informed the gardaí that the robber had been seen in a silver Ford Fiesta and that vehicle was traced by gardaí to an address in Ballyphehane. When the gardaí arrived at that address they met the appellant and he admitted that he had loaned Mr. Fitzpatrick a hoodie and that he gave Mr. Fitzpatrick a lift towards the bookmakers. When giving that lift, he had two of his children in the car with him at that stage and he was on the way to pick up a third child. He claimed, with what credibility people will have their own views on, that he thought that Mr. Fitzpatrick would not proceed with the robbery, but that later he knew that the robbery had proceeded, because Mr. Fitzpatrick returned to the house and gave him €70. Subsequently the appellant attended voluntarily at the garda station and said that Mr. Fitzpatrick had picked up something from the garden. The item picked up would appear to have been the stick carried into the bookies shop.

7. When Mr. Fitzpatrick was apprehended, he indicated that the appellant had a more active role in this whole incident than the appellant had conceded and indeed he contended that the appellant had received the full proceeds of the robbery. This contrast in the versions that were presented caused the trial judge to comment that this was a question of thieves falling out. The trial judge took the view that the involvement of Mr. Fitzpatrick was at the mid higher level and that of the appellant at the lower mid level.

8. So far as the two points that are made are concerned the court is not of the view that there is merit and substance in the suggestion that there was an inadequate differentiation of the role of the two participants. It is clear that the judge was conscious that their roles were different. He did, as I say, put their participation at different points on the spectrum, and that was reflected in the sentences that he imposed. He differentiated both in terms of the period in custody to be served and also in terms of how the suspended period and interactions subsequently with the probation service were to be structured.

9. It is the view of the court that the court was conscious both of their different roles and also conscious of their different backgrounds and personal circumstances. So far as the appellant is concerned, he did not come before the court as a person with previous convictions. He did have some what were described as minor road traffic offences some ten years earlier. It was also clear that he had a work history, he was a married man with three children and he had employment prospects. So far as the employment prospects are concerned, that too featured in the request to defer sentence. One purpose of deferring sentence was so that a probation report could be obtained and the second reason why it was said that the sentence should be deferred, was because the appellant believed that he could make restitution in respect of the money taken.

10. It is also the position that the case against the appellant depended very significantly on his own admissions and the cooperation that he had provided to gardaí. Without those admissions it would appear that there would not have been the ability to bring him to justice.

11. The court’s view is that the case that the learned trial judge was required to consider was a difficult one and a sensitive one. It was difficult because the offence of robbery is inherently a serious offence, but on the other side of the coin, the judge was being asked to proceed to sentence somebody who was a first time offender, somebody with the family background and circumstances described, somebody with a good work record, somebody who had pleaded at an early stage and had provided very meaningful cooperation indeed to the extent that he made possible the prosecution that was brought against him, which would otherwise have been impossible.

12. It seems to the court in that situation where the case was, as we would identify it, quite finely balanced as to what the outcome should be, that the judge erred in not seeking a probation report and in not maximising the amount of information that would be available to him when it came to performing the difficult and sensitive task of sentencing in this particular case. It is the court’s view that not obtaining the probation report was an error and that it is an error that requires an intervention at this stage from this Court. The Court is conscious of the fact that the appellant has been in custody now for just a month and takes the view that that is not insignificant in the context of somebody who was a first time offender and for whom this was their first experience of custody.

13. Had the probation report been available, that might have resulted in an order in relation to community service, it might have resulted in an order where the balance as between custody and suspended sentence was different to the one that was the actual outcome or it might have resulted in an entirely suspended sentence.

14. In a situation where the appellant has spent the month in custody, to which I have referred, what this Court is minded to do is to deal with it now on the basis of requiring him to undertake community service. Accordingly, what the court will do is the court will put the matter back to 2.00pm today with a view to having his suitability for community service assessed as it is our understanding and our experience of other cases in the list that that can be done within the day. If he is regarded as suitable for community service, then the court is proposing to direct him to undertake 200 hours of community service as an alternative to twelve months imprisonment and that order does take account and recognises the fact that he has in fact spent a month in custody. For the moment we will simply put the matter back to 2.00 o’clock today.

______________________________________

At 2.00 pm Peart J.:
15. We have received the report and the court is most grateful to the Probation Service for the speedy manner in which they have dealt with this matter for us today. The report as the appellant’s counsel says is a positive report and indicates his suitability for community service and that there is suitable work available apparently. As Mr. Justice Birmingham indicated this morning, the court is minded to substitute 200 hours of community service, provided of course that the appellant is willing to undertake that and he will understand that in the event that he does not complete the 200 hours, he is liable to serve the term of imprisonment. This is the decision of the Court and the order will reflect that. Obviously any breach of the undertaking to do to the 200 hours will result in the matter coming back to the court in some fashion to deal with it differently.

The People (DPP) v. Finn

[2001] 2 I.L.R.M. 211 (SC), The factual background
This is an appeal brought by the defendant pursuant to s. 3 of the Criminal Justice Act 1993 from the determination by the Court of Criminal Appeal of an application under s. 2 of that Act, the court having certified that its determination involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court.

The applicant was convicted by the Central Criminal Court (Lavan J) on a plea of guilty in respect of charges of:

(a) rape contrary to s. 48 of Offences Against the Person Act 1861 as amended by s. 2 of the Criminal Law (Rape) Act 1991 and

(b) assault occasioning actual bodily harm contrary to s. 47 of Offences Against the Person Act 1861.

The details of the rape and the assault were as follows. The applicant and the injured party, M., were on the beach at Rosses Point, Co. Sligo in the early hours of 18 January 1996. M. made what is accepted to have been an innocent remark as to the applicant not being the father of his girlfriend’s child. He thereupon subjected her immediately to a physical assault of such ferocity that she suffered relatively serious injuries and was rendered unconscious. While she was lying unconscious on the beach, he then raped her. When she recovered consciousness, he brought her to a nearby house under the pretence that she had been assaulted by someone else and that he (the applicant) was, as it were, coming to her rescue. M. was not aware that she had been raped and did not become so aware until a subsequent medical examination showed evidence of semen in her vagina.

The applicant, when first questioned by the gardaí, admitted to having assaulted M. when she made the comment about his girlfriend. In his second statement, he admitted to the rape. It is clear from the victim impact report furnished to the Central Criminal Court that, in addition to the physical injuries she sustained, her ordeal had significant psychological consequences for M. She was particularly concerned that the applicant should be imprisoned for what he had done, not simply because she thought he should be punished, but because she was afraid of what might happen to her if he were at liberty.

At the stage when sentence was imposed by the Central Criminal Court, the court had before it reports from a probation and welfare officer and a psychiatrist. From them it appeared that the applicant, who was then aged 21, came from a significantly disturbed family background, although he had done well at school. His problems derived from the fact that his father died when he was only 10 months old and that his mother’s second husband was abusive and violent on a regular basis, both towards her and her children, including the applicant. He appeared to have a good relationship with his girlfriend, with whom he lived in a flat and with whom he had a child who was three weeks old at the date of the offences to which he was now pleading guilty.

The learned High Court judge approached the imposition of the sentence with considerable care. Having been addressed in detail by counsel for the prosecutor as to the circumstances of the offences, he heard the evidence of the investigating garda sergeant, of the applicant’s mother and girlfriend and of the applicant himself and then heard submissions from counsel for the applicant and counsel for the prosecutor.

Before imposing sentence, the trial judge referred to the principles by which he considered himself bound, as laid down by this Court and the Court of Criminal Appeal. He said that, as to the facts of the present case, he was satisfied that the injured party, as he put it, had been beaten ‘to within an inch of her life’. He also accepted entirely the conclusions in the victim impact report as to the long term effects which this had had on M. He said that he was bearing in mind fully the mitigating factors in the case, i.e. that the applicant, having subjected the girl to this appalling ordeal, was sufficiently conscious of what he had done to seek assistance for her, that he made a full confession and had pleaded guilty, that he had no previous convictions and had to be regarded as being of blameless character until the night of the assault and that he had also entered the witness box and given sworn evidence as to his remorse for what he had done. The trial judge also accepted that the applicant’s family would have been prepared to pay compensation, so far as their means allowed, to M. but that M. and her family were not prepared to accept such compensation, a decision which the trial judge said that he understood and respected.

The trial judge concluded that the appropriate sentence in this case was one of seven years’ imprisonment in respect of the first count and three years’ imprisonment in respect of the second count. He also said, however, that, having regard to the factors to which he had referred, he would order the case to be re-listed before him, at which stage he would consider ‘reviewing how I will deal with the remainder of the sentence’. He made it clear to counsel that, since he was aware of the limited resources available in the form of a sex offenders’ programme in the prison system, he would strongly recommend that, if that programme were not available to the applicant, his family should make arrangements that other professional care would be available to him. He said that he would, accordingly, hear evidence at the review date as to the conduct of the applicant in prison and the counselling which he had undergone and he would also require a report at that stage on the injured party.

When the matter came before the court again on 22 October 1998, a further victim impact report was produced. M. had seen a psychologist for the first 12 months of the period, but not during the past 12 months because she did not want to take time off work. She said that, while she was getting on with her life, she was in constant fear of a similar event happening to her and was scared because of the possibility of the applicant being released from prison. She had a particular fear that he might come back to Sligo and endeavour to make contact with her, in which case she would have to leave the town, which she did not wish to do.

There was also a report before the trial judge of Mr Paul Murphy, a clinical psychologist concerned in the sex offenders’ programme in Arbour Hill prison. While that report concluded that the applicant had co-operated consistently in the programme and had good support available to him from an uncle and from his girlfriend, it also said that it was important that there should be ongoing therapeutic work with him and his girlfriend in order to address significant therapeutic issues that became apparent during the programme. The report also concluded that the applicant needed to have ‘ongoing supervision in the community and access to appropriate professional support’.

During the course of this hearing, the trial judge indicated to counsel for the applicant his concern that, if the applicant were released, he should under no circumstances return to Sligo, having regard to the security implications for the injured party and the anxieties that she had expressed. The applicant gave evidence that he was prepared to reside with his uncle in Longford, to give an undertaking that he would not cross the Shannon or go anywhere near Sligo and that he would avail of ongoing therapy. He then gave a voluntary undertaking not to visit the county of Sligo until 10 December 2003, to reside with his uncle and to arrange for ongoing supervision in the form of therapy. The trial judge then went on:

On the basis of the undertakings that the accused has sworn on evidence given before me, I am prepared to release him. The court has to balance the possibility of his being regenerated into the future. He is a young man. It has to afford him hope that he can address his future from here on in.

The trial judge accordingly released the applicant but directed that the case should be listed again in three months time so that the judge could be told of the position as to supervision. There was in fact a further hearing on 14 April at which the trial judge heard evidence from the applicant that he was living in Longford with his girlfriend, that he was doing a two-year computer course in that town, that he had had no contact with the injured party and that he was under the care of Mr Ryan O’Neill, a psychologist with the Midland Health Board. He said that Mr O’Neill had been informed of the circumstances of his case by Mr Paul Murphy who had attended their first meeting. The trial judge, having heard this evidence, suspended the balance of the two sentences, subject to the conditions imposed by him at the earlier hearing.

The application to the Court of Criminal Appeal
On 18 November 1998 the prosecutor gave notice of an application to the Court of Criminal Appeal pursuant to s. 2 of the 1993 Act:

to review the sentence passed upon the accused herein on 22 October 1998 by the Central Criminal Court, the Honourable Justice Lavin [sic].

The notice of application said that:

It is submitted that the sentence imposed on 22 October 1998 is unduly lenient having regard to all the circumstances of the case, including:

The gravity of the offence, the unprovoked nature of the assault, the severity of the violence inflicted on the injured party, the victim impact report submitted to the court, the oral evidence submitted to the court by a member of An Garda Siochana in 1996 and 1998, and in particular the contents of he report prepared by Paul Murphy, clinical psychologist at the Department of Justice dated 15 October 1998, together with a transcript of the evidence tendered before the Central Criminal Court and the judgment of the Central Criminal Court.

When this application came before the Court of Criminal Appeal, counsel for the applicant objected that it was out of time, not having been made within 28 days from the day on which the sentence was imposed as required by s. 2 of the 1993 Act. In a short ex tempore judgment delivered on 14 June 1999, the court rejected that objection. It then proceeded to deal with the application itself and, again in a brief ex tempore judgment, the court acceded to the prosecutor’s application and substituted for the sentence imposed in respect of the charge of rape a sentence of six years’ imprisonment, with no suspension in respect of either of the sentences.

On the application of counsel for the applicant, the court then certified that it was in the public interest that an appeal should be taken to this Court on the point set out in a certificate, i.e.

was it permissible for the DPP to appeal against the undue leniency of the said sentences pursuant to s. 2 of the Criminal Justice Act 1993 when no application was made until almost two years after the original sentence was imposed?

Submissions on behalf of the applicant
Mr Blaise O’Carroll SC, on behalf of the applicant, submitted that the words of the statute in this case should be literally construed and given their ordinary and natural meaning. So construed, the time limit for the purpose of an appeal was ‘28 days from the date on which the sentence was imposed’. He submitted that that could only refer to 10 December 1996 when the sentence was imposed by the Central Criminal Court.

Mr O’Carroll submitted that the definition of ‘sentence’ in s. 1 of the 1993 Act did not include a review of the sentence, which was a process occurring after sentence aimed primarily at the rehabilitation of the offender. He further submitted that, since the review of sentences was a feature of the criminal justice system which had been in existence for a number of years prior to the coming into force of the 1993 Act, the legislature, if it intended to include such reviews within the scope of the expression ‘sentence imposed by a court’ in s. 2 would have done so in clear and unambiguous language.

Mr O’Carroll further submitted that the prosecutor was not precluded from appealing a decision of a court to impose a sentence subject to its being reviewed within a specified time, on the ground that it appears to him that such a sentence is ‘unduly lenient’. The Director of Public Prosecutions is represented in court when the sentence is imposed and will be aware that, when a sentence provides for a review within a specified period, the probability is that, if the offender complies with any conditions laid down by the trial judge, he or she will be released on the review date with the balance of the sentence being suspended. He said that the Director of Public Prosecutions had impliedly accepted that the appropriate course for him to take where it appeared to him that the provision for a review date in the sentence was unduly lenient was to apply to the court under s. 2 of the 1993 Act for a finding to that effect within the 28 days provided for in the Act, as he had done in the case of People (DPP) v. Kelly Court of Criminal Appeal, 3 July 2000.

On behalf of the prosecutor, Mr Peter Charleton SC said that the appeal on the point of law as certified by the Court of Criminal Appeal raised issues of fundamental importance as to the entire review procedure on which the Director was anxious to obtain guidance from this Court.

Mr Charleton submitted that the date ‘on which the sentence was imposed’ within the meaning of s. 2(1) of the 1993 Act was 22 October 1998, since it was only at that stage that the order of the Central Criminal Court disposing of the case was finalised. An application by the prosecutor within the period of 28 days from 10 December 1996 would have been premature, since at that stage the Central Criminal Court had not given any indication as to what course of action it proposed to take on the review date. In circumstances where a trial judge effectively adjourns a case pending a review of a sentence — as happened here — he necessarily continued to exercise a jurisdiction affecting the operation of the sentence. In those circumstances, the sentence could not be said to have been ‘imposed’ within the meaning of the legislation until the review date.

A term of imprisonment was the period fixed by the judgment as the punishment for the offence and, accordingly, a sentence was not ‘imposed’ until such time as the term of imprisonment was actually fixed. He cited in this connection observations of Dixon CJ in the High Court of Australia in Windsor v. Boaden (1953) 90 CLR 345 at p. 347. As to the meaning of the word ‘imposed’, it was submitted that this connoted an action taken unilaterally by the court rather than an action voluntarily undertaken by the accused in a case and, accordingly was an appropriate use of language to describe what happened at the review stage.

Mr Charleton further submitted that it was clear from the decision of this Court in O’Brien v. Governor of Limerick Prison [1997] 2 ILRM 349 that where a judge provides for a review of a sentence imposed by him at some future date he or she retains seisin of the case. He said that it was a logical consequence of that finding that such a case could not be regarded as finally disposed of until such time as the review procedure was completed by the court of trial.

The applicable law
S. 2 of the 1993 Act provides that:

(1) If it appears to the Director of Public Prosecutions that a ‘sentence imposed’ by a court (in this Act referred to as the ‘sentencing court’) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed.

S. 1(1) of the Act provides that:

In this Act, unless the context otherwise requires ….

‘sentence’ includes a sentence of imprisonment and any other order made by a court in dealing with a convicted person other than—

(a) an order under s. 17 of the Lunacy (Ireland) Act 1821 or s. 2(2) of the Trial of Lunatics Act 1883, or

(b) an order postponing sentence for the purpose of obtaining a medical or psychiatric report or a report by a probation officer ….

Article 13.6 of the Constitution provides that:

The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities.

S. 23 of the Criminal Justice Act 1951 provides that:

(1) Except in capital cases, the government may commute or remit, in whole or in part, any punishment imposed by a court exercising criminal jurisdiction, subject to such conditions as they may think proper.

(2) The government may remit, in whole or in part, any forfeiture or disqualification imposed by a court exercising criminal jurisdiction and restore or revive, in whole or in part, the subject of the forfeiture.

(3) The government may delegate to the Minister for Justice any power conferred by this section and may revoke any such delegation.

(4) This section shall not affect any power conferred by law on other authorities.

For a period of over 20 years, a practice has developed in the Central Criminal Court and the Circuit Court of including in a custodial sentence imposed by the court a provision for a review of the sentence at the expiration of a specified period. The normal practice has been for the trial judge, when the matter comes before him or her by way of review, to receive and consider reports from the prison service as to the behaviour of the convicted person. In cases where the person has been convicted of a sexual offence, reports will normally be forthcoming as to whether a place was available in a sex offenders programme and, if so, whether it was availed of by the convicted person. Similarly, where the convicted person is addicted to drugs or alcohol or both, reports would normally be available to the court indicating whether he has received appropriate forms of counselling or therapy and, if so, the degree to which he has benefited from them.

The Court of Criminal Appeal expressed its disapproval of sentences of this nature at an early stage in People (DPP) v. Fagan Court of Criminal Appeal, 7 November 1977 and People (DPP) v. O’Toole Court of Criminal Appeal, 26 May 1978. There was no written judgment in either of those cases, but in People (DPP) v. Cahill [1980] IR 8, the desirability of such sentences was considered at length by Henchy J delivering the judgment of the court.

In that case, the applicant was sentenced to seven years’ imprisonment by the Central Criminal Court, having been convicted of burglary. The trial judge, however, directed that the court would ‘consider suspending the then balance of the sentence’ if the applicant were to be brought before the court after the expiration of 36 months and if he then showed that in the meantime he had obeyed normal prison discipline and had shown a willingness to co-operate in preparing himself for integration into normal society.

In his judgment, Henchy J having referred to the two earlier decisions, went on:

Because the opinion of this Court (that a sentence in this form should not be imposed) has not been expressed in a written judgment and may, therefore, have escaped notice, the court takes this opportunity of re-stating that opinion and giving reasons for it. There are a number of grounds on which this form of reviewable sentence could be said to be undesirable.

The first of these grounds was that, in making such an order, a High Court judge sitting in the Central Criminal Court, would effectively be pre-empting the functions of the President of the High Court since s. 11 of the Courts (Supplemental Provisions) Act 1961 stipulates that the jurisdiction exercisable by the Central Criminal Court shall be exercised by a judge nominated from time to time by the President of the High Court. Henchy J pointed out that the projection by a trial judge of a sentencing jurisdiction into the distant future ignores the fact that, for a variety of reasons (including the statutory provisions therein referred to), he may not be available to exercise the purported jurisdiction on that date in the future. While that case was concerned only with the practice in the Central Criminal Court, the observations of Henchy J would appear to apply mutatis mutandis to the position in the Circuit Court.

The second ground was that a sentence in this form did not seem compatible with the right of appeal against sentence given to a person convicted on indictment. Having regard to the time constraints applicable to the appeal procedure, a convicted person would be in difficulties in exercising his right of appeal on the ground of severity, since he would not know at that stage the length of the sentence which he would in fact be required to serve. If, however, the expression ‘the close of the trial’ in the relevant rule of court, which was the time from which the appeal period ran, were to be the date when the sentence was being reviewed, the sentenced person’s right to seek to appeal would be postponed until then which would be ‘palpably unfair and unjust’. Henchy J observed:

The inevitable conclusion would seem to be that the appellate system postulates a trial that comes to a close with a final order which identifies once and for all the particular conviction and the particular sentence. From then on (save where it is specifically provided otherwise, by statute or under the Rules) the trial judge is functus officio as far as the trial is concerned.

The third ground was that such a sentence gave the appearance of trenching on a function of the executive. Henchy J commented that:

It is part of the judicial function to determine the nature and extent of the sentence, whenever the general rule laid down by statute or common law gives a range of choice. Thereafter it is within the power of the government, or the Minister for Justice as its delegate, to commute or remit, in whole or in part, ‘any punishment imposed by a court exercising criminal jurisdiction’ — see the provisions of s. 23 of the Criminal Justice Act 1951. A direction that a prisoner is to be brought back to the court of trial for a review of his sentence after three years impliedly seeks to freeze the executive discretion as to remission during that period, and then to vest in the court a power of review which is not readily compatible with the powers withheld from the courts and vested in the executive by s. 23 of the Act of 1951.

Finally, it was said that such a sentence was not in accord with correct principles of penology, since it was desirable that both the prison authorities and the prisoner should be in a position to plan for the date of release and that the appropriate rehabilitative procedures should be in place leading up to the date of release.

The judgment concluded as follows:

For the foregoing reasons amongst others, the court is of opinion that a sentence of a term of penal servitude or imprisonment which is coupled with the reservation to the court, or to the particular judge, of a power to review the sentence at a future date should not be imposed.

In this case the court will quash the sentence imposed and, in lieu thereof will impose a sentence of four years’ imprisonment from the date of the imposition of the sentence hereby quashed.

Despite this disapproval by the Court of Criminal Appeal of sentences of this nature, they have been imposed in many cases since then by judges sitting in the Central Criminal Court and the Circuit Court. They were also considered in a more recent decision of the Court of Criminal Appeal, People (DPP) v. Sheedy [2000] 2 IR 184. In that case, the applicant had pleaded guilty to counts of dangerous driving causing death and of driving a motorcar while above the alcohol limit. The trial judge imposed a sentence of four years to be reviewed in two years time. Delivering the judgment of the court, Denham J said:

The issue of the review date formula of sentencing was not fully argued. The review structure is a process by which a judge is able to individualise a sentence for the particular convicted person. It is a tool by which the judge may include in the sentence the appropriate element of punishment (retribution and deterrence) and yet also include an element of rehabilitation. For example, it may be relevant to a young person or a person who has an addiction or behavioural problem and at least some motivation to overcome that problem, it may well be appropriate as part of a rehabilitation aspect of the sentence to provide for a programme or treatment within the sentence as a whole and then to provide for a review of the process at a determinate time. However, this was not such a case. There was no evidence of, for example, addiction. There were no factors such as would render it appropriate to invoke a structure of treatment and then to review the sentence. This is not an appropriate case to sentence on the review date formula of sentencing. Thus, the trial judge erred in principle in this aspect of the sentence.

From the summary of counsel’s arguments at an earlier part of the judgment it would appear that the court was referred to Cahill, but it is not otherwise referred to in the judgment.

A sentence containing such a review provision was considered by this Court in People v. Aylmer (decided in 1986 but not reported until [1995] 2 ILRM 624). A sentence providing for a review had been imposed in 1979 and the balance of the sentence was suspended in 1982 on condition that the applicant would remain of good behaviour. However, following a further separate conviction in 1984, the DPP applied to have the suspension of the balance of the 1979 sentence revoked and the Central Criminal Court duly ordered the applicant to serve the remaining balance of the sentence. The Supreme Court dismissed an appeal against the sentence, but the reasons given in the five judgments delivered are not the same.

Walsh J said that the sentence originally imposed by the Central Criminal Court was valid. He rejected a submission that it in some way trenched on the powers vested in the executive by s. 3 of the Criminal Justice Act 1951, pointing out that the executive were not precluded from commuting the sentence in its entirety and that, if they had chosen so to do, the review provision in the sentence would simply have been inoperable. He also rejected the suggestion that the trial judge had in some way been usurping the functions of the President of the High Court, since the sentence simply envisaged that the order on the review procedure would be made by a judge of the Central Criminal Court, not necessarily himself. He declined to deal with the other grounds of appeal raised, on the ground that they raised questions as to whether the sentence imposed was in accordance with principles of good penology, which, he said, could only have been raised if an appeal had been taken against the sentence.

As to the decision in Cahill, Walsh J commented that:

It should be pointed out that in that case the court was dealing with a sentence of penal servitude and not one of imprisonment. When the question of whether any particular sentence is in an undesirable form or not falls to be considered by the appropriate appellate court it is one which must be determined by the circumstances of the case.

It should be noted that Walsh J, accordingly, does not deal with two of the grounds mentioned by Henchy J in Cahill i.e. whether a sentence containing a review procedure is incompatible with the right of appeal of a convicted person against sentence and whether it is in accordance with correct principles of penology. The reasons he declined to deal with the latter ground have already been mentioned and it may be that the first ground was not relied on in Aylmer.

Henchy J said that the appeal should be dismissed because the applicant was estopped from claiming that the original sentence was invalid, since he had sought to take advantage of it by getting the balance of his sentence suspended. As to Cahill, he contented himself with saying that

It is true that the Court of Criminal Appeal on 26 July 1979, in People (DPP) v. Cahill [1980] IR 8, held that an order of the kind made by Butler J in this case was undesirable. In my opinion, it is not necessary for the purposes of this appeal to make a ruling as to whether such an order is also invalid, as distinct from being undesirable.

Griffin J also found it unnecessary to express any view on the validity of the original sentence: he held that, since it had not been appealed, its validity could not now be successfully challenged and that it followed that the order appealed from to the Supreme Court, deriving as it did its efficacy from its initial order, also could not be challenged.

Hederman J also declined to express any view on the propriety or validity of sentences of this nature. He was satisfied that the appeal in the instant case failed because there had been no appeal within time from the original sentence and there were no grounds on which the court could grant any extension of time for such an appeal. McCarthy J, in common with Walsh J, was satisfied that the sentence containing the review provision was valid, but was not prepared to express any view as to its desirability, saying:

I think it would be invidious for me to express any view of intended general application in a sentencing matter. I would not wish to circumscribe the judicial power in its application to the circumstances of a particular case.

Two members only of the court (Walsh and McCarthy JJ), accordingly, upheld the validity of this form of sentence in that case. The majority (Henchy, Griffin and Hederman JJ) were of the view that it was unnecessary to express any view on the validity or propriety of such a sentence and declined so to do.

The topic was considered more recently by the court in O’Brien v. Governor of Limerick Prison [1997] 2 ILRM 349. In that case, the applicant was sentenced to imprisonment for a term of ten years, the final six years of which were to be suspended subject to certain conditions which were to take effect when the period of suspension began. However, the applicant claimed to be entitled to be released before the expiration of the four year period on the ground that he had at that stage served three-quarters of the custodial sentence and was entitled to be released pursuant to r.38(1) of the Rules of the Government of Prisons 1947. That rule provides that a prisoner sentenced to imprisonment for a period exceeding one calendar month is to be eligible, by ‘industry and good conduct’, to earn a remission of a portion of his imprisonment, not exceeding one-fourth of the whole sentence. The applicant in that case was entitled to the remission for industry and good conduct, provided — and this was the matter at issue — the provisions of rule 38(1) applied to the term of four years and not to the term of ten years only.

The court (Hamilton CJ, O’Flaherty, Denham, Barrington and Murphy JJ) held that a sentence in that form could not be reconciled with the provisions of the Prisons (Ireland) Act 1907 and the Rules for the Government of Prisons 1947 which, in the view of the court, clearly contemplated that the period of imprisonment should be identical with the period of the sentence. It was also inconsistent with the provision in the Act that on the discharge of a prisoner ‘a sentence shall be deemed to have expired’: this, it was pointed out, seemed to be inconsistent with a period of imprisonment remaining suspended over a prisoner’s head after his release pursuant to the rules and the Act. Accordingly, the sentence of ten years, suspended as to the final period of six years, could not have been lawfully imposed, but a sentence of four years had been lawfully imposed and the applicant was entitled to a remission of one-quarter of that four years’ term. He was therefore entitled to be released after the expiration of three years.

O’Flaherty J indicated in the course of his judgment that, had the trial judge made use of the review procedure instead of purporting to suspend the sentence as from a specified date, the sentence would have been valid. O’Flaherty J commented:

This form of order was held to be undesirable by the Court of Criminal Appeal in the case of People (DPP) v. Cahill [1980] IR 8, but when the question was revisited, this Court in People (DPP) v. Aylmer [1995] 2 ILRM 624 upheld the validity of this form of order. The desirability of such form of order was touched upon only to a degree in some of the judgments in the latter case.

As has already been pointed out, the majority of the court in Aylmer declined to express any view on the validity of the review procedure and, accordingly, the view of Walsh J and McCarthy J that such sentences were valid did not form part of the ratio decidendi of that case.

The validity of the review procedure was also referred to in State (Woods) v. Attorney General [1969] IR 385. The facts in that case were somewhat complex: it is sufficient to say that a sentence containing a review clause was found to be invalid by Henchy J in the High Court, but solely on the ground that he construed the sentence as entrusting the decision as to whether the prosecutor was to be released to the prison authorities, which he considered to be an unlawful assignment of a purely judicial function to the executive. On the hearing in this Court, however, it emerged that the warrant in that case did not fully or accurately reflect what the High Court judge had said when imposing sentence. Ó Dálaigh CJ in the course of his judgment said that it was clear that the High Court judge had in fact retained seisin of the case and that, accordingly, the sentence could not be regarded as invalid on the ground on which Henchy J had based his decision in the High Court. The learned Chief Justice expressed no view on the wider issue which was subsequently debated in Cahill — as to whether such sentences were invalid in principle irrespective of how the review provision was worded — and, while in accordance with the then prevailing practice there is virtually no report of any of the arguments advanced to the court, it would seem reasonable to assume that the issues canvassed in Cahill were not the subject of any submissions to the court.

The issue as to whether sentences of this nature are valid and, if so, whether their imposition is desirable has, accordingly, never been authoritatively resolved. On three occasions, the Court of Criminal Appeal has held that they are undesirable. In Sheedy, however, it was accepted that their imposition in cases concerning young people and convicted persons with behavioural or addiction problems might be appropriate. In Woods, this Court held that a sentence containing a review clause in particular terms was not invalid on a ground which had prevailed in the High Court. In Aylmer, two members of the court were of the view that such sentences were valid, but expressed no opinion as to their desirability. The majority of the court expressly reserved the question as to whether they were either valid or desirable. In O’Brien, the determination of the issue was not necessary for the disposal of the appeal and, accordingly, the observations of O’Flaherty J, not dissented from by the other members of the court, that their validity had been established in Aylmer were obiter.

It remains to be noted that s. 5 of the Criminal Justice Act 1999, which provides for the imposition of a mandatory minimum term of imprisonment of ten years for certain drugs offences, also provides that:

In imposing a sentence on a person convicted of an offence under section 15A of [The Misuse of Drugs Act 1977], a court—

(a) may inquire whether at the time of the commission of the offence the person was addicted to one or more controlled drugs, and

(b) if satisfied that the person was so addicted at the time and that the addiction was a substantial factor leading to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the period specified by the court under subsection (3B) of the section.

3
(H) On reviewing a sentence listed under subsection (3G)(b) of this section, the court—

(a) may suspend the remainder of the sentence on any conditions it considers fit, and

(b) in deciding whether to exercise its powers under this subsection, may have regard to any matters it considers appropriate.

Conclusion
The central issue raised by this appeal is whether the expression ‘the sentence’ in s. 2(2) of the 1993 Act refers to the sentence imposed by the learned trial judge on 10 December 1996 or to the orders made by him on 22 October 1998 and 14 April 1999 or to all three.

The arguments advanced on behalf of the prosecution necessarily involved the proposition that there were in this case at least two, if not three, sentences imposed by the Central Criminal Court. At the conclusion of a criminal trial, in the event of the jury having returned a verdict of guilty on one or more counts, the trial judge is required to impose sentence on the convicted person. When he has done so, he is, as a general rule, functus officio and he cannot thereafter impose a further sentence: the jurisdiction to substitute another sentence for the sentence actually imposed is exclusively a matter for the appellate court. If the review procedure availed of by the court in this case were to be regarded as the imposition by the trial judge of a different sentence at a later stage, its invalidity would be beyond argument: it is clear from the authorities already cited that, to the extent that such sentences are valid, it is because the trial judge is entitled to reserve to himself a power, when imposing sentence, to consider at a later date whether it should be suspended in whole or in part having regard to the behaviour of the applicant in the interim period. To that extent, and to that extent alone, the trial judge is not functus officio: the order made by him at the review procedure is no more than the carrying into effect of the sentence already imposed by him.

The court is, accordingly, satisfied that, to the extent that the legislature directed their minds to the possibility of a sentence containing a review clause when enacting s. 2(2) of the 1993 Act, they would have envisaged that any appeal taken by the Director of Public Prosecutions in the case of such a sentence on the ground of undue leniency was to be taken within 28 days from the imposition of the sentence and not of the order implementing the review procedure. It is important to note in this context that a number of the grounds advanced on behalf of the DPP at the appeal stage in this case, and which appear to have been the grounds which found favour with the Court of Criminal Appeal, related exclusively to the sentence as originally imposed, i.e. the gravity and severity of the assault and rape, the unprovoked nature of the assault and the grave impact of the assault and rape on the injured party. Clearly, given the express statement by the trial judge when imposing sentence that he would, at the review date, entertain evidence as to the conduct of the applicant in prison and the counselling he had undergone, it must have been anticipated on behalf of the Director of Public Prosecutions that, in the event of such reports being favourable, the balance of the sentence would be suspended. Arguments based on those grounds were, accordingly, appropriately directed to the sentence as originally imposed, containing as it did the review clause, and not to the order actually made at the review stage.

As to the definition of ‘sentence’ in s. 1 (1) of the 1993 Act, the legislature no doubt considered it desirable to make it clear that the expression ‘sentence imposed by the court’ in s. 2(1) applied, not merely to custodial sentences, but also to the wide range of other sentences available to a court in dealing with a convicted person, e.g. fines, community service orders, orders forfeiting property or providing for the payment of compensation, etc. It also seems clear that, having regard to sub-paragraph (b), an order by the trial judge adjourning the imposition of sentence for a period of time, such as a year, in order to afford the convicted person an opportunity of demonstrating a bona fide intention of rehabilitating himself, is a ‘sentence’ for the purposes of the section, as distinct from an order adjourning sentence for the purpose of obtaining reports. That was so held by the English Court of Appeal in Attorney General’s Reference (No. 22 of 1992) [1994] All ER 106 when it was considering a somewhat analogous provision in that jurisdiction. It can, accordingly, be said that in such a case there are in effect two sentences. But that is because the legislature has elected to extend the definition of the word ‘sentence’ to an order which in fact defers sentence. An appeal thus lies from either or both sentences and the time limit prescribed by s. 2(2) applies to both. An appeal would lie from the order deferring sentence on the ground that such a ‘sentence’ was unduly lenient because the circumstances required the imposition of an immediate sentence, whether custodial or otherwise. Similarly, an appeal would clearly lie from the sentence ultimately imposed.

Similarly, an appeal undoubtedly lay from the sentence imposed in this case on the ground that the incorporation of a review procedure in the sentence was ‘unduly lenient’ within the meaning of s. 2(1). No doubt, on a literal reading of the section each of the orders made in this case on 22 October 1998 and 14 April 1999 was an ‘order made by a court in dealing with a convicted person’ within the meaning of s. 1(2). That might suggest that, in an appropriate case, it would be open to the Director of Public Prosecutions, even where he had made no application to the Court of Criminal Appeal in relation to the original sentence, to apply to that court on the ground that an order made by the trial judge on the review date was ‘unduly lenient’, as where it was clear from the reports from the prison authority or from any other evidence before the trial judge that the conditions prescribed in the sentence for the reviewing of the sentence had not been complied with by the applicant.

However, s. 1(2) cannot be read in isolation: in accordance with normal principles of statutory interpretation, it must be read in the context of the statute as a whole, including the provisions of s. 2. Subs. (2) of that section refers to:

a sentence imposed by a court … on conviction , of a person on indictment … [Emphasis added].

While it can readily be accepted that, given the extended definition of ‘sentence’ in s. 1 (1), an order deferring sentence for a specified period for the purpose already mentioned is a sentence imposed by the court ‘on conviction’, the same cannot be said of the order made by a court giving effect to a review provision.

It must be remembered that the facility afforded by these provisions to the State, through its prosecuting authority, to challenge a sentence as being ‘unduly lenient’ constitutes a significant encroachment upon the finality of a judicial decision in favour of a convicted person which, at least in the case of sentences imposed on persons convicted on indictment, is without precedent. Hence, the importance of the time limit of 28 days for making such an application prescribed by s. 2(2) and the absence of any power in the court to extend that time.

The court is satisfied that it would not be consistent with that approach to construe s. 2(2) as affording the Director two separate opportunities of applying to the Court of Criminal Appeal, the first arising on the imposition of the sentence containing the review provision and the second when the court actually reviews the sentence in accordance with the first decision. There is nothing in the statutory scheme to suggest that it was the intention of the Oireachtas to permit the DPP to intervene on two separate occasions to obtain a review from the court of what is effectively the same sentence.

The court is, accordingly, satisfied that, not having applied to the Court of Criminal Appeal within the 28 days prescribed by s. 2(2) on the ground that the incorporation of the review procedure was ‘unduly lenient’ within the meaning of s. 2(1), the prosecutor was precluded from making an application to the court in respect of the two orders subsequently made by the trial judge and that the Court of Criminal Appeal was wrong in law in substituting sentences of six years’ imprisonment and three years’ imprisonment with no suspension of either sentence for the sentence originally imposed by the trial judge.

That is sufficient to dispose of the appeal in the present case. However, it will be apparent from the earlier part of this judgment that there is considerable uncertainty as to the legal validity of the practice of providing in custodial sentences for the review of the sentence at a later date by the court imposing the sentence. Members of this Court who have sat regularly on the Court of Criminal Appeal and have also experience of the practice in the Central Criminal Court or in the Circuit Court are aware that, while some judges consider the practice not only valid, but desirable, others take the view that they should not impose such sentences. In a matter of such importance it is to be expected that this Court will afford clear guidance to trial judges and, accordingly, while mindful of the fact that in legal terms everything it says on this topic must be regarded as obiter, it is satisfied that it is desirable in the public interest that such guidance should be available to trial judges.

There can be no doubt that, in the opinion of some judges, the review procedure is an important mechanism which helps to ensure the rehabilitation of convicted persons. There are, however, two important aspects of such sentences which must be borne in mind in considering their legal validity.

First, there is the factor identified by Henchy J in People (DPP) v. Cahill i.e. that a sentence in this form is, in effect, an invasion by the judicial arm of government of the executive domain which is not authorised by law. The court recognises the force of the view expressed by Walsh J in Aylmer that a trial judge, in imposing a sentence in this form, does not in any way interfere with the statutory power of the Minister for Justice to commute or remit the sentence pursuant to s. 23 of the Criminal Justice Act 1951. It is undoubtedly the case that, where such a sentence is imposed, there is in law nothing to prevent the Minister for Justice from exercising his power of commutation or remission during the period between the imposition of the sentence and the review date.

However, the essential legal frailty of the review procedure is not that it deprives the executive of its statutory power to commute or remit the sentence during that period. It is that, when the review date arrives and the Central Criminal Court or the Circuit Court, on being satisfied that the relevant conditions have been met, suspends the balance of the sentence and orders the release of the convicted person, it is in substance exercising the power of commutation or remission which the Oireachtas has entrusted exclusively to the government or the Minister for Justice to whom the power may be delegated. The minister cannot, of course, in exercising that power do what the court purports to do at the review stage, i.e. impose a suspended sentence which would normally involve the convicted person being returned to prison on foot of the order of a court in the event of his being convicted of further offences or breaking other conditions attached to the sentence. But if one looks to the substance of the order made by the court at the review date it is clearly an order which releases the convicted person before the completion of the sentence which the judicial arm of government considered appropriate at the sentencing stage and must, accordingly, be regarded as, in all but name, the exercise by the court of the power of commutation or remission which, during the currency of the sentence imposed by the court, is vested exclusively in the executive.

The making of such orders is not merely inconsistent with the provisions of s. 23 of the 1951 Act: it offends the separation of powers in this area mandated by Article 13.6 of the Constitution. That provision expressly vests the power of commutation or remission in the President but provides that the power may also be conferred by law , on other authorities. Since under Article 15.2.1° of the Constitution the sole and exclusive power of making laws for the State is vested in the Oireachtas, it was for the legislative arm alone to determine which authorities other than the President should exercise that power. In enacting s. 23 of the Criminal Justice Act 1951, the Oireachtas conferred the power of commutation or remission on the government or, where it delegated its power, the minister. In State (O.) v. O’Brien [1973] IR 50, Walsh J with whom Budd J agreed, categorised the power in question as being essentially judicial, but pointed out that it had been:

nonetheless expressly conferred by provisions of the Constitution upon the President and, in certain instances, upon the executive or members thereof.

It would seem to follow that the remission power, despite its essentially judicial character, once vested under the Constitution in an executive organ, cannot, without further legislative intervention, be exercised by the courts. That, as has been noted, has been done in the case of certain drug offences by the Criminal Justice Act 1999.

It is also, of course, open to the Oireachtas to provide by legislation, as has been done in other countries, for the regular review of sentences by a parole board and such an approach might well be consistent with modern penological principles. These again, however, are entirely matters for the legislature and not within the competence of the courts, having regard to Article 13.6, to determine.

It must also be said that, altogether apart from those considerations, the reservation by trial judges to themselves of a power to review the sentence being imposed by them at some later date appears to be fundamentally at variance with the appeal structure prescribed by O. 86, r.3 of the Rules of the Superior Courts. That provides that:

Every application for a certificate of the judge of the court of trial that the case is a fit case for appeal shall be made at the close of the trial or within three days thereafter …

The ‘close of the trial’ would normally be taken as referring to the stage at which the trial judge imposes sentence. If, however, the sentencing process is not completed until the review date, that would appear to be ‘the close of the trial’ for the purposes of the rule and a convicted person would effectively be deprived of his right of appeal against the sentence until such time as he had served at least part — and it may be in some cases a significant part — of the sentence imposed by the trial judge.

The form of sentence imposed in this case came into use for a variety of reasons. First, there was a very striking increase in crime committed by persons who were drug addicts or were otherwise in need of treatment which gave rise to a need to give positive encouragement to avail of it. Secondly, and at about the same time, the ‘revolving door syndrome’ created a need to ensure, as far as possible, that certain prisoners would actually serve some minimum sentence. Thirdly, the absence of any significant legislative initiative on these topics encouraged and virtually constrained trial judges dealing with such cases on a day to day basis to attempt to supply the deficiency in the course of dealing with individual cases. In this context, it may be noted that even the suspended sentence, though apparently in use for upwards of a century, has no statutory basis in Irish law. And fourthly, while the executive power of remission of sentences (apart from the usual remission obtainable under the prison rules) always existed, it was exercised in a manner which a leading academic authority has moderately described as ‘rather haphazard’. Certainly, it was neither sufficiently clear in its principles nor transparent in its operation to meet the penological requirement of reasonable certainty.

In those circumstances, it appears to us that Professor Thomas O’Malley, the author quoted above, is correct when he says in his book Sentencing Law and Practice (Dublin 2000) that:

In developing the part-suspended and reviewable sentences, judges had very honourable motives. They were endeavouring, in many cases, to counteract the ‘revolving door syndrome’ by ordering that certain offenders should remain in prison for a minimum period of time. The public would thus have a greater measure of protection and the offender might hopefully be able to get some treatment for drug addiction, aggressive tendencies or some similar problem.

It now appears extremely desirable, to say the least, that the question of remission of sentence, and any review which is to precede it, should be placed on a clear and transparent basis. The Law Reform Commission in their Report on Sentencing [LCR 53–96] reviewed a number of options in this regard. This is not a matter within the competence of this Court. It is clearly for the Oireachtas to decide whether to retain the present system unaltered, to retain it on a clearer and more transparent basis, to devolve the function wholly or partly to a parole board or some other entity, or indeed to confer it on the courts. But as the law presently stands the courts cannot exercise this function in individual cases by reason of the separation of powers mandated in this regard by Article 13 of the Constitution. Nor can they prescribe or advocate an alternative system because that is in the remit of the legislature.

The court has already pointed out that its observations in this area are necessarily obiter. They are not to be taken as impugning the validity of such sentences imposed by trial judges in cases which have already come before the courts, either because of the incorporation of review provisions or the manner in which such review provisions have been implemented or not implemented or the manner in which they may be implemented or not implemented in the future. That also applies to the sentence imposed by the trial judge in the present case and the manner in which he operated the review procedure on two subsequent occasions.

It must also be borne in mind that, given the clear disapproval of sentences in this form voiced by the Court of Criminal Appeal in 1979, it would have been open to a convicted person to challenge the validity of such sentences either by way of appeal to the Court of Criminal Appeal, or, in the case of the Circuit Court, in judicial review proceedings. That of itself might render challenges now brought to the validity of such sentences, or the manner in which the review clauses were implemented or not, unsustainable. For the purposes of this judgment, however, it is sufficient to say that the court is satisfied that sentences in this form are undesirable, having regard to the serious legal questions which arise as to their validity, and that the practice of imposing them should be discontinued.

In the present case, the court will allow the appeal and will substitute for the sentence imposed by the Court of Criminal Appeal the sentence originally imposed in the Central Criminal Court and will also affirm the orders made by the Central Criminal Court on 26 October 1998 and 14 April 1998.

Hyland v. McCartan

[1998] IEHC 103 (26th June, 1998)

Judgment of Miss Justice Laffoy delivered on 26th day of June 1998

1. This is the Applicant’s application for an Order of Certiorari by way of application for judicial review quashing various orders made by the first Respondent in the Dublin Circuit Court on 23rd July, 1997 affirming orders of Judge Windle made in the District Court on 12th September, 1996 on the ground that the first Respondent should have imposed a lesser sentence on the Applicant than the maximum sentence of imprisonment on foot of his plea of guilty.

2. On 12th September, 1996 the Applicant appeared in the District Court to answer 23 charges under the Road Traffic Acts. He pleaded guilty to all of the offences which occurred on four separate occasions, namely, on 19th July 1995, 19th August 1995, 20th September, 1995 and 3rd November, 1995. The Applicant pleaded guilty to the charge of driving without insurance on each of the four occasions. Judge Windle imposed terms of imprisonment in respect of some of the offences charged and, in total, the Applicant was sentenced to 24 months imprisonment, being the maximum term of imprisonment which could be imposed pursuant to the provisions of Section 5 of the Criminal Justice Act, 1951, as amended by Section 12 of the Criminal Justice Act, 1984.

3. The Applicant appealed the orders of the District Court to the Circuit Court and the appeal came on for hearing before the first named Respondent on 23rd July, 1997. The Applicant was represented by a solicitor and counsel and, in effect, the appeal was an appeal against the severity of the sentences imposed in the District Court. Counsel for the Applicant told the first Respondent that the Applicant was a drug addict and was trying to deal with his habit and that a reduction or suspension of sentence would help his rehabilitation. Having enquired as to the Applicant’s previous convictions, the first Respondent was apprised that the Applicant had twelve previous convictions including convictions on 28th June, 1994 for making a false declaration to obtain insurance, uttering a forged driving licence and having no driving licence or insurance, for which he received a six month suspended sentence and was disqualified for twelve years. The list of previous convictions and penalties also included the imposition by the first Respondent of a five months suspended sentence and disqualification from driving for seven years four weeks earlier, on 27th June, 1997, for driving without insurance on which occasion the Applicant had made a plea in mitigation similar to the plea he made on 23rd July, 1997. In affirming the orders of the District Court, the first Respondent stated that the Applicant had an “appalling record”.

4. On behalf of the Applicant Mr. O’Kennedy submitted that in imposing what he contended was the maximum penalty and in failing to give the Applicant a “discount” for his plea of guilty, the first Respondent acted in a manner which was inconsistent with the duty imposed by law on him and in excess of his jurisdiction and that, in the circumstances, the remedy of Certiorari is available to the Applicant. In support of his contention that the first Respondent was obliged to “discount” the maximum sentence in favour of the Applicant on account of his guilty plea, Mr. O’Kennedy cited the Judgment of the Court of Criminal Appeal delivered on 15th December, 1997 by O’Flaherty J. in The People (D.P.P.) -v- Martin Gannon , in which the accused had pleaded guilty at the Dublin Circuit Court to a count of unlawful possession of a quantity of heroin for the purpose of sale or supply contrary to Sections 15 and 27 of the Misuse of Drugs Act, 1977, as amended. In reviewing the sentence imposed, O’Flaherty J. said:-

“The accused pleaded guilty and even if the evidence was strong this Court has repeatedly said that nonetheless a discount has to be given in respect of a plea of guilty”.

5. On behalf of the Respondents, Mr. McDonagh took issue with the proposition that the maximum penalty had been imposed on the Applicant, in that, in addition to a maximum custodial sentence of 24 months, the District Court and the Circuit Court could have imposed fines aggregating £7,700 on the Applicant. Moreover, it was contended that it is not correct to characterise what happened in either the District Court or the Circuit Court as the imposition of the maximum sentence allowed by law; rather what happened was that Judge Windle was constrained by the relevant provisions to impose consecutive sentences amounting in total to a period not greater than 24 months. In any event, Mr. McDonagh submitted, at all times the first Respondent was acting within jurisdiction and within the parameters of the authority conferred on him by the Oireachtas. The nub of the Applicant’s complaint, it was suggested, is that the first Respondent gave excessive weight to one aspect of the factual matrix within which he was operating – the Applicant’s previous record – and not sufficient weight to another aspect- the Applicant’s plea of guilty. Certiorari is not a form of appeal and Certiorari does not lie to quash a decision within jurisdiction of an inferior tribunal on the grounds that the decision is wrong on matters of fact. In support of this contention Mr. McDonagh cited the decision of this Court (O’Hanlon J.) in Lennon -v- Clifford (1993) I.L.R.M. 77, affirmed by the Supreme Court on 23rd May, 1996, and the decision of this Court (Murphy J.) in Roche -v- District Judge Martin (1993) I.L.R.M. 651.

In The People (D.P.P.) -v- Tiernan (1988) I.R. 250, in delivering the majority decision of the Supreme Court, Finlay C.J. considered the relevance of a plea of guilty generally in sentencing and said:-

“A plea of guilty is a relevant factor to be considered in the imposition of sentence and may constitute to a lesser or greater extent, in any form of offence, a mitigating circumstance.”

6. Having outlined the significance of an admission of guilt at an early stage followed by a plea of guilty as a mitigating factor in a case of rape, Finlay C.J. went on to say:-

“Such an admission of guilt may, depending on the circumstances under which it is made and the extent of the evidence apparent to an accused person as being available against him, also be taken in some circumstances as an indication of remorse and therefore as a ground for a Judge imposing sentence to have some expectation that if eventually restored to society, even after a lengthy sentence, the accused may possibly be rehabilitated into it”.

7. The word “may” to which I have added emphasis in quoting the above passages, indicates that the weight to be given to a plea of guilty in the particular circumstances of any imposition of sentence is a matter of fact within the discretion of the sentencing judge.

8. In affirming the Order of Judge Windle, who had undoubtedly acted within his jurisdiction, the first Respondent also undoubtedly acted within jurisdiction. There were various factors which he was required to have regard to in imposing a sentence. The weight he attached to the various factors is not a matter which this Court is entitled to scrutinise on an application for judicial review. In essence, what the Applicant seeks is that this Court should find that the first Respondent did not give sufficient weight to the plea of guilty as a mitigating factor. Such a finding would be outside the scope of this Court’s jurisdiction in judicial review. In the circumstances this application must fail.

9. Accordingly, the relief sought by the Applicant is refused.

 

People (DPP) v McC

 

, unreported, Court of Criminal Appeal, May 12, 2005

Judgment of the Court delivered on 11th day of May, 2005 by Denham J.

1. This is an appeal by A.C., hereinafter referred to as the appellant, against his convictions by the Circuit Criminal Court on the 24th day of July, 2003.

2. The following charges were preferred to the jury:-
“Count No. 1
Statement of Offence
Buggery contrary to Section 61 of the Offences against the Person Act, 1861.

Particulars of Offence
A.C. you did on a date unknown between the 1st May, 1992 and 31st July, 1992 at … in the County of Wicklow commit buggery on one L.M.
Count No. 2
Statement of Offence
Sexual Assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001.
Particulars of Offence
A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 but on a date at least five days later than the date referred to in Count Number 1 sexually assault one L.M., a male.
Count No. 3
Statement of Offence
Sexual Assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001.
Particulars of Offence
A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 but on an occasion other than referred to in Counts Number 1 and 2 above sexually assault one L.M., a male person.
Count No. 4
Statement of Offence
Buggery contrary to Section 61 of the Offences against the Person Act, 1861.
Particulars of Offence
A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 and on a date a least five days later than the date referred to in Count Number 1 commit buggery on one L.M., a male.

Count No. 5
Statement of Offence
Sexual Assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001.
Particulars of Offence
A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 in or about seven days after the assault referred to in Count Number 2 did sexually assault one L.M., a male person.
Count No. 6
Statement of Offence
Buggery contrary to Section 61 of the Offences against the Person Act, 1861.
Particulars of Offence
A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 in or about seven days after the assault referred to in Count Number 2 … in the County of Wicklow did commit buggery on one L.M., a male.
Count No. 7
Statement of Offence
Sexual Assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001.
Particulars of Offence
A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 on a date about one month after the assault referred to in Count Number 3 … in the County of Wicklow did sexually assault one L.M., a male person.

Count No. 8

Statement of Offence
Buggery contrary to Section 61 of the Offences Against the Person Act, 1861.

Particulars of Offence
A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 about one month after the incident referred to in Cont Number 3 … in the County of Wicklow did commit an act of Buggery on one L.M., a male.

There was a further Count, Count No. 9, relating to an offence of buggery and a Count No. 10 relating to an offence of sexual assault.

3. The jury returned verdicts as follows: Count No. 1, not guilty; Count No. 2, guilty; Count No. 3, guilty; Count No.4, not guilty; Count No. 5, guilty; Count No. 6, not guilty; Count No. 7, guilty; Count No. 8, not guilty; Count No. 9, not guilty; Count No. 10, guilty. In other words the appellant was found guilty by majority verdicts of the offences of sexual assault and not guilty of the offences of buggery.

4. The Notice of Appeal is grounded upon a certificate from the judge of the court of trial. The grounds are as follows:

1. The trial was unsatisfactory in that materials requested by the appellant in February, 2003, were only disclosed to the defence just before the commencement of the trial on July 23rd, 2003. The said material contained a matter seriously damaging to the credibility of the complainant which the defence was thereby precluded from putting in cross-examination. The matter was that the complainant said in his evidence that when the accused first molested him in 1992, the accused said “V… likes it – do you want to try it?” V…’s complaint, which was not prosecuted alleged interference in December, 1996.
2. There was no complaint by the complainant of any act of sexual impropriety other than allegations of buggery, of which the accused was acquitted by the jury, and therefore no evidence to support the jury’s finding of guilty of sexual assault.

5. There are two issues on this appeal: (i) the submitted failure of the prosecution to make full and prompt disclosure pursuant to their legal duty; (ii) the submission that the verdicts of the jury were inconsistent with the evidence to the extent of being perverse.

6. Submission on first issue
On the issue of the failure to disclose it was submitted on behalf of the appellant that:-
(i) The defence were aware that a cousin of the complainant had made allegations of sexual abuse against the appellant in this case, which were investigated by the Gardai and on foot of which a decision not to prosecute was taken by the Director of Public Prosecutions. By letter dated the 20th day of February 2003, the solicitor for the appellant requested a copy of the garda investigation file relating to this other complaint.
(ii) The documents in question were only furnished to the appellant’s solicitor some few minutes prior to the commencement of the trial of the appellant on the 23rd day of July, 2003, affording no opportunity to adequately peruse the documents.

(iii) It was alleged by the complainant in this case, L.M., in his statement to the Gardai made on the 2nd day of August 2000, repeated in evidence to the jury that on the first occasion, he was sexually abused by the appellant, the appellant said, “V… likes it/do you want to try it”. It is clear from the evidence of the appellant that the first alleged sexual assault took place in the year 1992.

(iv) The allegations made by V. M. related to events which took place in the years 1996 and 1997. Because of the failure of the prosecution to make disclosure in time, this highly important discrepancy and potentially hugely damaging factor for the credibility of the complainant, L.M., was not put to him in cross examination.

(v) While in hind sight it would have been desirable to seek an adjournment to enable the documents to be properly perused, the commencement of the trial of this nature is always a time of considerable tension, when many matters have to be considered and unfortunately such an application was not made.

(vi) In the premises, it was submitted that a conviction by a jury, where the appellant by his counsel did not have an opportunity to put the highly significant matter above referred to, to the complainant, in cross examination, was unsafe and unsatisfactory and should not be allowed to stand.
(vii) The prosecution did not comply with its duty to make disclosure in a criminal case.

On behalf of the Director of Public Prosecutions it was submitted that:
(i) the disclosure was made before any evidence was heard and so People (D.P.P) v Meleady [1995] 2 I R 517 and D.P.P. v Redmond (unreported judgment of C.C.A. on 28th July, 2004) do not apply as they relate to facts / evidence coming to light after a conviction.
(ii) The defence had opportunities to look for adjournments or to obtain time or to consider the material.

7. Decision on first issue
This is a case where there were charges of buggery and sexual assault. The prosecution case rested on the evidence of the complainant, which was uncorroborated. As is not uncommon in these cases there was a considerable length of time between the alleged offences and the trial. In such circumstances the core of the case was the credibility of the two key witnesses – the complainant and the appellant. It was a stark choice for the jury. A central issue was credibility of the appellant.

The obligation of the prosecution to disclose is a principle which, quite rightly, was not contested on this appeal. Thus the issue before the Court is whether the prosecution failed to make prompt disclosure in the circumstances, and, if they did, what are the consequences.

The circumstances included the fact that V.M., had made allegations against the appellant also, but after investigation the Director of Public Prosecutions decided not to prosecute.

When this case was in the list for trial in February, 2003, it was adjourned to enable disclosure. By letter dated the 20th February, 2003, the solicitor for the appellant requested a copy of the garda investigation file relating to the other complaint. The documents were furnished to the solicitor for the appellant a few minutes prior to the commencement of the trial of the appellant on 23rd July, 2003.

The defence had been aware that a cousin of the complainant had made allegations of sexual abuse against the appellant, which were investigated by the Gardai, and that a decision not to prosecute has been made by the Director of Public Prosecutions. As noted above, by letter dated 20th February, 2003, the solicitor for the appellant requested information, including details relating to other allegations and statements.

The Court’s attention was drawn to a letter from the Garda Síochána public office to the solicitor for the appellant, dated 7th April, 2003. It was a purported response to the request for information. Inter alia it stated that details in relation to other allegations, copies of written statements and memo, were attached. In fact they were not. Clearly there was an omission in sending the letter in not attaching the items to the letter. Also, there was an omission on receipt of the letter in not realising that the attachments were not there. The consequence was that the requested information was received by the legal advisers to the appellant only minutes before the trial.

Thus the circumstances were that months after the request the documents were furnished minutes before the trial commenced. There was no reasonable opportunity for the defence to consider the contents of the documents. The documents contained important facts including the dates of the alleged offences against V.M. In essence the situation is that while the offences on this prosecution are alleged to have occurred first in 1992, and V.M. complained of events in 1996, yet the complainant stated the appellant said “V… likes it – do you want to try it?”

This case turns on the credibility of the complainant and appellant and in such circumstances no questions were asked relating to this information. The Court is satisfied that a trial, in the circumstances where this information was made available to the legal advisers only minutes before the trial, was unsatisfactory. The Court is satisfied that an unfair situation arose and that the trial was unsatisfactory because materials requested in February 2003 were only disclosed minutes before the trial began on 23rd July, 2003: which materials contained important information relevant to the credibility of the complainant.

It is true to state, as has been submitted on behalf of the Director of Public Prosecutions, that the facts of this case may be distinguished from Meleady and Redmond. Both of those cases were concerned with evidence which had emerged subsequent to the conclusion of the respective trials. The principles applicable to the consideration by this court of such cases are now well established. However, the mere fact that evidence, or potential evidence, relevant to a trial emerges at a late stage in the trial process (rather than after the completion of the trial) does not rule out the possibility that the trial may nonetheless be rendered unsafe and unsatisfactory.

In the view of this court, and without being necessarily exhaustive, the following factors should be taken into account in the assessment of cases where it is contended that the conduct of the defence was prejudiced by the late availability of material evidence.

1. The court should consider, by reference to the principles already established in respect of cases where evidence emerges subsequent to trial, the materiality of the new evidence;
2. By analogy with the principles already established in such cases, the court should consider the extent to which the unavailability of the evidence in question until a late stage in the criminal process was contributed to, on the one hand, by any default on the part of the prosecution, and, on the other hand, any failure on the part of the defendant; and
3. Where some of the failure to ensure that the relevant evidence was available in a timely fashion is attributable to the defence and/or where the defence may been culpable, notwithstanding the late disclosure of availability of such evidence, in failing to utilise such evidence, the court should consider the extent to which it may be reasonable to infer that the failure to call or exploit such evidence may have been due to a tactical decision on the part of the defence.

Applying those principles to the facts of this case the court is satisfied for the reasons set out above that having regard to the stark choice which the jury faced the evidence concerned was highly material. While the apparent failure of the defence to identify the lack of enclosures in the letter of the 7th April, 2003, undoubtedly contributed to the situation, and while there was some limited opportunity for the defence to consider the materials in the course of the trial, it must also be emphasised that a significant proportion of the responsibility for the fact that the evidence in question was not, in practice, available for effective use by the defence must rest upon the prosecution. Finally the court is satisfied that there is no basis upon which it could reasonably be inferred that the failure to use the evidence concerned was due, even in part, to a tactical decision on the part of the defence. In all those circumstances the court is satisfied that the trial was “unsafe and unsatisfactory”. The Court considers, therefore, that the conviction of the appellant was unsafe and unsatisfactory and the Court will therefore quash the conviction of the appellant. Consequently, it is not necessary for the Court to consider the second issue.

The Court has considered the issue of a retrial. In all the circumstances of the case, and having regard especially to the complainant’s evidence that the events occurred in 1992, and the complainant’s evidence that the events were initiated by the appellant with the comment “V… likes it – do you want to try it?”, in the circumstances where the defence are now in the position (with the aid of this new material) to establish that V. made complaints relating to events in 1996, in these circumstances the Court considers that on a retrial a judge would be obliged and constrained to grant a direction, on the basis that a jury properly charged could not safely convict. With that in mind the Court would not order a retrial.

People (DPP) v Horgan

 

[2007] I.E.C.C.A. 29
UDGMENT of Mr. Justice Kearns delivered on the 3rd day of May, 2007.

This is an application brought by the applicant pursuant to s. 2 of the Criminal Justice Act, 1993 for a review of certain sentences of imprisonment imposed on the respondent on 10th March, 2006, following his conviction on that date in the Central Criminal Court for the rape and manslaughter of Rachel Kiely on 26th October, 2000, at the Regional Park in Ballincollig, Cork.
The respondent had been arraigned on two counts on 29th April, 2002, as follows:-
(a) Murder of Rachel Kiely on 26th October, 2000, at Ballincollig Community Park, Ballincollig in the County of Cork.
(b) Rape of Rachel Kiely on 26th October, 2000, at Ballincollig Community Park, Ballincollig in the County of Cork.
A trial lasting 26 days took place in May, 2002 in the course of which the respondent gave evidence denying that he had anything to do with the death or rape of Rachel Kiely. However, at the conclusion of the trial, the respondent was convicted of the said offences and was thereupon sentenced to a term of imprisonment for life on the count of murder and to a term of imprisonment of ten years for rape, the same to run concurrently with the life sentence, but to date from the 6th November, 2000.
Because of an error in the summing up to the jury by the trial judge, both convictions were quashed by this Court on 6th December, 2004, and a retrial ordered, which said trial commenced on 21st February, 2006. On that date the respondent was re-arraigned and, in relation to the count of murder, he pleaded “not guilty of murder but guilty of manslaughter.” The respondent at all times maintained his plea of “not guilty” in relation to the count of rape.
The evidence at the second trial was to the effect that Rachel Kiely left her home in Inishmore Square, Ballincollig in Cork with her two dogs to go walking in the nearby regional park at about 5pm on 26th October, 2000. She was then 22 years old and worked as a beautician. While she was seen in the park at around 5.15pm, the dogs returned home without her at about 5.40pm, at which point her mother became concerned as to Rachel’s whereabouts and safety. Both the gardaí and friends were contacted and an extensive search was undertaken. Her body was found concealed in undergrowth near some old ruins located in the park. She had been raped and there was further evidence that she had suffered compression to her neck, probably as a result of an armlock, which precipitated her death by causing cardiac arrest. She also had extensive bruising along the left jaw line and some other scratches and superficial injuries.
Evidence as to cause of death was given in the first trial by former State Pathologist Dr. John Harbison. Unfortunately, due to his illness, he was unable to testify in the second trial. His successor, Dr. Marie Cassidy, gave evidence in relation to cause of death which was based on photographs only. She concluded that Rachel was caught and held in an armlock which compressed her neck and precipitated cardiac arrest and death. Semen found on the deceased matched a DNA sample from the respondent, who at the time was a sixteen year old neighbour of Rachel Kiely. The respondent did not give evidence at this second trial.
At the conclusion of the trial, the respondent was ultimately found not guilty of murder by the jury but guilty of manslaughter. He was also found guilty of rape by the jury.
On the same date, the respondent was sentenced to terms of imprisonment of eight years on each count, the same to run concurrently, but as and from the 10th day of March, 2006, with six years of the said sentences being suspended. In formulating the sentences, the learned trial judge noted that the respondent had already spent four and a half years in jail since 2002, the bulk of which was time spent in custody whilst awaiting trial, but some of which followed his conviction in the aftermath of his first trial. The learned trial judge had regard to the fact that the time spent in jail amounted to the equivalent of a six year sentence when remission for good behaviour was taken into account. The sentence of eight years then imposed effectively added a further two years to that six year sentence. The learned trial judge treated the respondent as a person with no previous convictions although that was not strictly the case as of the sentencing date, the respondent having been convicted of certain other offences in 2005, during the period when he was at liberty following the setting aside of his original convictions by this Court. As was noted in evidence given by Sergeant Denis Cahill in the course of the sentencing hearing, the respondent was charged with the main offences on 10th November, 2000. He went into custody on that occasion and remained in custody until 31st January, 2005. At that time he was granted bail by the High Court. However, he later went back into custody on 7th December, 2005, having been convicted at Macroom District Court in County Cork of three offences. These offences consisted of a s. 2 assault, possession of stolen property and burglary, all perpetrated while the respondent was on bail following the quashing of his convictions in the first trial. It appears he received a very light sentence of 30 days in respect of these offences. In passing sentence the learned trial judge treated the respondent as a person who had no previous convictions. He did so on the basis that the three offences dealt with in the District Court were committed subsequent to the main offences of which he was convicted at the trial. He did however state that these later convictions cast some doubt upon the genuineness of the respondent’s efforts at rehabilitation while in custody.

The Jurisdiction of the Court
Section 2(1) of the Criminal Justice Act, 1993, provides, inter alia:-
“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 test to be applied on the hearing of such an application was laid down by this Court in Director of Public Prosecutions v Byrne [1995] 1 I.L.R.M. 279, where the following passage occurs at p.287:-
“…. since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.”
In People (DPP) v Redmond [2001] 3 I.R. 390 this Court reaffirmed the basic principle that a sentence should not be disturbed just because members of the court, had they been dealing with the matter at first instance, might have imposed a different one. Absent exceptional circumstances, an error of principle must be demonstrated. Where, however, an error of principle is established, this Court should proceed to consider what is the appropriate sentence, following for that purpose the procedures required under the authority of The People (Director of Public Prosecutions) v Cunningham [2002] 2 IR 712.

The Application
The grounds upon which the applicant moves in the present case are as follows:-
(a) The learned trial judge failed to have due regard to the fact that the respondent had pleaded not guilty to the offences upon which he was tried until the 21st February, 2006.
(b) The respondent’s denials included sworn testimony denying the said offences during the course of his first trial.
(c) The learned trial judge gave undue weight to the age of the respondent as a mitigating factor when imposing a sentence.
(d) The learned trial judge erred in finding that the respondent had rehabilitated himself in whole or in part by virtue of educational opportunities taken by him whilst in custody when he had been convicted for other offences whilst on bail on the said charges, or, alternatively, giving undue weight to that consideration in the particular circumstances having regard to the absence of any contrition in respect of the offences until 21st February, 2006.
(e) The learned trial judge failed to have due regard to the fact that the particular offence of manslaughter was that of assault manslaughter committed in the course of or for the purposes of rape.
(f) that, having regard to the particular facts, the offence of manslaughter on this occasion had to be regarded as being in the most serious class of offences, being a category or class of greater seriousness than manslaughter where the evidence disclosed there was provocation or the use of excessive force in self – defence.

Submissions made on the application
In the course of the application before this Court, Mr. Patrick McCarthy, S.C., counsel for the applicant, contended that the aggravating factors of the offences far outweighed the mitigating factors. He submitted that the evidence in case showed that the respondent had “ambushed” Rachel Kiely while she was out for a walk in the park which was close to her home. The level of violence involved in the course of the rape of Rachel Kiely had led to her death, and was thus to be seen as being in the worst category, or at least in the same category, as those cases where a rape is accompanied by sustained or gross physical assault. Thirdly, he submitted that the value of any plea offered by the respondent at the outset of a second trial was negligible having regard to the history of the case.
Mr. Brendan Grehan, S.C., counsel for the respondent, urged that the original sentence should not be disturbed. He submitted that the characterisation of what had happened as an “ambush” of Ms. Kiely was unsupported by evidence and indeed there was no evidence that what had happened was premeditated. The respondent had made an amateurish attempt to cover his tracks and the jury had acquitted the respondent of murdering Ms. Kiely. He had offered a plea of guilty to her manslaughter at the outset of the second trial. He was aged only sixteen years when he killed Ms. Kiely and had no convictions prior to the date of the killing. The respondent had also apologised for his actions after the verdict was returned by the jury. He had not appealed against his conviction for rape. He was now a registered sex offender and was serving his sentence on a special wing in the midlands prison, Portlaoise, Co. Laois. He had been the subject matter of some quite vicious media reporting since the date of his conviction. All of this had added greatly to his suffering. Mr. Grehan urged that the respondent be permitted to continue his excellent progress on various educational courses and to be put on a treatment programme for sex offenders.
In relation to the offence of manslaughter, Mr. Grehan urged the court to take the view that this was a case of “involuntary manslaughter” where little violence had been inflicted on the victim. There was no evidence to suggest there had been any sustained or violent attack upon Rachel Kiely. The evidence of State Pathologist, Dr. Cassidy, indicated that some relatively short term compression of the neck could have precipitated cardiac arrest and caused of death of Rachel Kiely.

The Law
Manslaughter is an offence punishable with a maximum sentence of life imprisonment. Manslaughter consists of an unlawful killing and is currently defined by reference to two categories, voluntary and involuntary manslaughter. Voluntary manslaughter is, essentially, mitigated murder where the accused killed under provocation, or used excessive force in self-defence or could show diminished responsibility on a charge of murder or infanticide. Involuntary manslaughter is, as pointed out by O’Malley in Sentencing Law and Practice, 2nd Ed.,at p. 249:-
“…a somewhat misleading term in so far as it might suggest that the accused was acting involuntarily at the time, which is not, of course, the case.”
Involuntary manslaughter currently comprises two subcategories, being (a) manslaughter by an unlawful and dangerous act and (b) manslaughter by gross negligence. We are only here concerned with the former.
In Ireland, a conviction for unlawful and dangerous act manslaughter (where the unlawful act is an assault) arises where:-
(a) the act which causes death constitutes a criminal offence and poses the risk of bodily harm to another;
(b) the act is one which an ordinary reasonable person would consider to be dangerous, that is, likely to cause bodily harm.
(c) in this regard ‘dangerousness’ is to be judged objectively.
As pointed out in the recent Law Reform Commission Consultation Paper on Involuntary Manslaughter (published March, 2007) at p. 27:-
“The fact that an accused did not foresee, or indeed that a reasonable person in his or her position would not have foreseen death as a likely outcome of the unlawful conduct is irrelevant to a finding of guilt. Liability is constructive in that an accused’s intention to inflict some trivial injury to another person would make it justifiable for the law to hold him accountable for the unexpected result of his behaviour, that is, death.”
The requirement that the act must be both unlawful and dangerous to ground a manslaughter conviction was confirmed by this court in The People (AG) v. Crosbie and Meehan [1966]1 I.R. 490.
It almost goes without saying that manslaughter by assault may involve varying degrees of culpability due to the varying degrees of violence which may be employed. The Law Reform Commission Paper states:-
“The more brutal the assault (for instance if several punches or kicks are applied to the head or if the accused brandishes a knife), the more foreseeable death or serious injury are and the more reprehensible the criminal conduct.”
Different levels of culpability are reflected in sentencing decisions. In the first edition of his book on the topic Mr. O’ Malley states at p. 403:-
‘Of those imprisoned for manslaughter in 1993 and 1994, exactly 50 percent got five years or less and 50 percent got five to 10 years. Sentences in excess of 10 years are rare, though not unknown, and are generally reserved for manslaughters which, in terms of gravity, are bordering on murder. The general trend seems to be that the more deliberate and gratuitous the assault or violence leading to the victim’s death, the heavier the punishment that is deserved.”
In the second edition of Sentencing Law and Practice, Mr. O’ Malley notes at pp. 249 to 250:-
“Courts in several common law jurisdictions have said that the sentence for manslaughter must depend largely on the context in which the crime was committed …. it is clear that the amount of violence intended or inflicted is a crucial factor.”
Indeed, in The People (DPP) v Conroy (No.2) [1989] 1 I.R. 160, the Supreme Court noted that there was no presumption that a particular instance of the crime of manslaughter could not, from a sentencing point of view, be as serious as, or more serious than, an instance of the crime of murder and further that there was no sentencing principle which would inhibit a court from imposing the maximum permissible sentence for manslaughter merely on the grounds that such a sentence had not been imposed in recent times.
As was noted by this Court in People (DPP) v Kelly [2005] 1 ILRM 19, the court must in every case examine the range of penalties applicable. It must then ascertain the location within that range of the case under consideration. It is only after this examination has been completed that the court should consider any mitigating circumstances. Current Irish sentencing principles require an individuated approach.
That such an approach can yield widely varying outcomes is apparent from various decisions of this Court. In Conroy’s case, the appellant was one of four men who forcibly entered the home of an elderly woman, tied her to a chair and ransacked the house. They then entered another house occupied by two elderly men, each of whom was severely beaten. One of them died shortly afterwards as a result of his injuries, while the other died in hospital some weeks later. While the appellant pleaded guilty to burglary and manslaughter and had no previous convictions of significance, this Court imposed an effective sentence of 17 years in lieu of the sentence of life imprisonment imposed by the Central Criminal Court for the manslaughter offence.
A very different view was taken in People (Director of Public Prosecutions) v. O’ Donoghue [2006] IECCA 134. In that case the defendant was an adult male in his 20’s who had forcefully griped an eleven year old boy, a neighbour who he knew very well, in a headlock during a form of ‘horseplay’. He was charged with murder, and he pleaded not guilty to murder but guilty of manslaughter. In a statement to the gardaí, he claimed that he grabbed the boy after the boy had thrown stones at his car, and that the death had been an accident. At his trial he was acquitted of murder but was found guilty of manslaughter and was sentenced to four years imprisonment. The prosecution appealed against the sentence imposed on the grounds of undue leniency.
In the course of dismissing the appeal, this court noted that the death arose out of the catching of the young boy in a headlock and, even with the additional forcible grasping of the neck, this could not be described as “a deliberate, violent or prolonged assault” on the deceased. However, the court also noted that that conclusion by the trial judge that this might be described as being at the “horseplay end of things” was not inconsistent with its description of being “dangerous”.
Significantly, and in marked contrast to the present case, the O’ Donoghue case was bereft of any aggravating feature in the sense that the unlawful and dangerous act which resulted in the death was not, on the facts as found by the court, linked with any other offence, serious or otherwise.
Insofar as sentencing for rape is concerned, the Court is aware of a number of cases where in recent years this Court has upheld life sentences imposed by the Central Criminal Court for that offence, including The People (DPP) v. D (Unreported, Court of Criminal Appeal, 21st May, 2004), The People DPP v. RMcC (Unreported, Court of Criminal Appeal, 12th May, 2005), The People (DPP) v. Adams (Unreported, Court of Criminal Appeal, 21st December, 2004) and The People (Director of Public Prosecutions) v. King (Unreported, Court of Criminal Appeal, 7th April, 2005). Some of these cases involved multiple rapes and involved children, but in no case was the victim killed. In The People (DPP) v. Barry (Unreported, Court of Criminal Appeal, 16th Oct, 2006) a sentence of 21 years was upheld by this Court in circumstances where a young woman was assaulted and gang-raped by four assailants while her boyfriend was locked in the boot of a car. There is thus ample precedent for a sentence at the highest range when the particular facts and circumstances so demand.
As to the status and importance of previous convictions in the context of mitigation, the Court notes that in People (DPP) v Dwyer [2007] IECCA 3, February 2nd, 2007, it was held that it was wrong and an error in principle for the trial court to hold that convictions and sentences imposed subsequent to the date of the main offences but prior to sentencing for the main offences “can be effectively ignored”, particularly where they illustrate a propensity or where they relate to similar crimes, and that they must be taken into account – at least to some degree.

The Judgment
In passing sentence, the learned trial judge pointed out that the untimely death of Rachel Kiely had “undoubtedly devastated” the entire of the Kiely family. The Kiely family and the respondent’s family had been obliged to move away from the locality where they had been living. He noted that the respondent had, like the Kiely family, undergone the stress of having to face a second trial. He further noted that in the intervening period the former State Pathologist, Dr. Harbison, had become ill. He observed that Dr. Harbison’s illness had operated to the respondent’s benefit, “insofar as it seems that the evidence given by Dr. Cassidy was perhaps less forceful from the prosecution’s point of view in relation to the charge of murder.” He noted that “in the circumstances” the jury were constrained to return a verdict of manslaughter and “because of that, perhaps the rape was the more heinous of the offences you committed.”
He then detailed the factors he would take into account in imposing sentence. Firstly, he took into consideration the age of the respondent at the time when the offences were committed. The learned trial judge also dealt with the matter on the basis that, at the time when the offences were committed, the respondent was a person of good character with no previous convictions. The learned trial judge qualified that finding by adding: “but it does concern me, that within a relatively short period of being released from custody, you got yourself into trouble and it does give me concern as to whether or not you will in fact rehabilitate yourself and that was one of the reasons why I asked Mr. Grehan after lunch how you spent your time in prison and whether you had sought to avail of the educational opportunities that were going to be open to you.”
The response to that inquiry revealed that the respondent had completed both his junior and leaving certificates while in prison and this seems to have allayed the concerns of the trial judge on the issue of rehabilitation. The learned trial judge then proceeded to determine that concurrent sentences were appropriate in respect of the convictions for manslaughter and rape and that a sentence of eight years in respect of each of the counts was appropriate.
Having regard to the period spent in custody on remand, the learned trial judge assessed that this was the “equivalent of a six year sentence”. He then proceeded to impose the eight year sentence in respect of the two offences, but suspended six years of the eight year sentence in respect of each offence, the said sentence to operate from 10th March, 2006.

Decision
The court is satisfied that there was a basic error of principle in this case in the formulation of the sentence in that the aggravating nature of each offence upon the other was not adequately addressed. The learned trial judge made no reference to this consideration in the course of the sentencing hearing. In the view of this Court, this particular consideration is the distinguishing feature which places the offences in the category of the most severe.
In considering the conviction for rape, the court cannot ignore the fact that this offence was aggravated to the greatest possible degree by the dangerous manner in which it was perpetrated. This involved restraining the victim by her neck in an armlock or headlock, a manoeuvre which, as was frankly conceded in the course of the cross-examination of Dr. Cassidy, involved a high degree of danger to the victim. The learned trial judge, while undoubtedly mindful of the background facts, did not advert to them in any detail. The victim, who was known to the respondent, had gone for a brisk walk in a nearby park with her dogs. The court does not consider as unreasonable the characterisation of the rape and fatal assault on Rachel Kiely as a form of ambush in the particular circumstances. It was perpetrated in sobriety in the late afternoon. There was evidence that the body had been moved to a concealed position by the perpetrator. There was also evidence before the court that the respondent had attempted to run away or leave home at an early stage of the garda investigation. Sergeant Cahill testified that on the evening when the respondent was first interviewed at home by members of the gardaí, he thereafter left home with his bags packed and was subsequently picked up by the gardaí in Cork city.
The court is also of the view that the plea of guilty to manslaughter which was offered at the outset of the second trial must be seen as a relatively small value in the particular circumstances that the respondent gave sworn testimony that he had absolutely nothing to do with this matter when first tried. On any version of events, the lateness of the plea, coming as it did some five years after the events, greatly lessens its value. For much the same reasons, the value of the apology offered by the respondent in the aftermath of his convictions must be seen in the same light.
Insofar as the manslaughter offence is concerned, the unlawful and dangerous act which resulted in the death of Rachel Kiely took place during the course of a rape, which equally elevates that particular offence into the most serious category. The Court is of the view that there are strong public policy considerations which demand that a rape accompanied by violence which carries an appreciable risk of death, must be seen as being in a most serious category and must attract a sentence at the higher range. It is not in controversy in the instant case that the neck of the deceased victim, Rachel Kiely, was compressed, either prior to or during the course of the rape offence, and by any objective or reasonable standard this must be seen as a highly dangerous form of assault.
At the end of the day, it is perhaps unhelpful to characterise the case either as one of aggravated manslaughter or aggravated rape. The truth of the matter is that each offence was aggravated by the other. It is that interconnection which demands the imposition of a severe sentence. Having concluded that there was an error of principle in the formulation of the sentences by the learned High Court judge, this Court proceeded to hear further submissions from the respondent’s counsel before rising to consider the sentence it would substitute as appropriate. Having considered those further submissions, it is the decision of the Court to impose sentences which, whilst severe, will not deprive the respondent of some hope of rehabilitation and re-entry into society. The Court is also mindful of his very young age at the time of the commission of the offences. The Court also takes into account the fact that the respondent offered a plea of guilty to manslaughter at the commencement of his second trial, though that plea was of no great value when the entire history of the case is taken into account and notably where the denial of rape was maintained.
The Court will substitute sentences of twelve years on each of the convictions for manslaughter and rape, the same to run concurrently, and to be backdated to the 10th September, 2001. The Court would hope that the educational opportunities afforded to the respondent in the past will be continued during the remainder of his sentence.
Given that it formed no part of the applicant’s oral submissions before this court, and given that the decision of this Court in DPP v Dwyer [2007] IECCA 3 was not available to the learned trial judge or referred to by counsel for the applicant, the court in reaching its decision has not taken into account in any way, other than in the manner considered by the trial judge, the significance of the convictions incurred by the respondent during the period when he was on bail in 2005. The Court believes it was a reasonable approach on the part of the trial judge to treat the 2005 convictions as raising doubts about the sincerity of the respondent’s efforts at rehabilitation at that time and will refrain from considering any other sequelae which may flow from the Dwyer decision, given that it is not altogether clear from the judgment whether the later offences in that case were committed subsequent to the offences the subject matter of the application for review.

DPP v John Paul Kelly

 

, Court of Criminal Appeal (ex tempore) July 25, 2008
Applicant

Judgment of the Court (ex tempore) delivered on the 25th day of July 2008 by Fennelly J.

This is an application for leave to appeal against severity of a sentence of 7 years imprisonment imposed by Her Honour Judge Delahunt in the Dublin Circuit Criminal Court. The applicant pleaded guilty to one count of possession of drugs, diamorphine or heroin for supply. It is not as. 15A case because the value of the actual drugs found in his actual possession were less than €13,000. It followed from a search warrant issued to the Garda Siochana which was executed on 16th December, 2005 at the applicant’s flat at Old Distillery Building in Beresford Street. There was a Garda surveillance operation put on the flat and the Gardai found one person leaving the flat who had 10 packets of heroin on him which were subsequently valued at €3,200. He also had the key of the flat on him, that other person, and the Gardai then, in execution of the warrant and using the key, went into the flat where the applicant was found lying on a bed speaking on his mobile and when he saw the Gardai he shouted out “Its the Guards, it’s the Guards”. A search of the flat then revealed a number of incriminating items €10,695 in cash, which at a later stage the applicant accepted, was the proceeds of drug dealing, five knotted bags of brown paper powder containing heroin to the value of €1,300, a box of clear plastic bags, some cut off plastic bags, brown wrapping paper, blue carbon paper, which is used to disguise the presence of drugs on importation, to disguise them from x-ray machines, a weighing scales found on analysis to have traces of heroin on it, a mobile phone which had text messages showing requests for drugs. There was a series of Garda interviews where gradually,

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at first having given a false account of the origin of the cash, he later admitted could be the proceeds of heroin and he later admitted that he had been selling heroin for a time. The learned judge in sentencing quite correctly concluded that the evidence showed he had been involved in extensive drug dealing.

The applicant was born on 16th October, 1985. He had 61 previous convictions. A large number of them admittedly based on the Road Traffic Acts, but some of those serious, dangerous driving, s. 49 cases, s. 112 cases, public order offences and two offences of possession of drugs for personal use. It is also material to note that he was contemporaneously sentenced to four years imprisonment in respect of a completely separate matter of reckless endangerment which is running concurrently with this. The net effect of this sentence is that he will have to serve three years additional imprisonment in respect of this particular drug-dealing matter.

One of the principal points made on his behalf by Mr. McCarthy, made very clearly in written submissions and here, is that the learned judge was wrong to deprive him of the full benefit of his plea of guilty because he did plead guilty. Mr. O’Briain on behalf of the Director has drawn the courts attention to s. 29 of the Criminal Justice Act 1999 which requires the court to take account of the stage of the proceedings at which the person indicated an intention to plead guilty and the circumstances in which the indication was given. In fact, of course, the actual offer of the plea was delayed by a period of 8 to 10 months and what Mr. McCarthy says is that that was reasonable because he was waiting for the completion of the disclosure process by the prosecution. The court would like to make an observation on that argument. The court is of the opinion that the suggestion on behalf of the appellant that he should not be deprived of the full value of the early plea because it was reasonable to await completion of disclosure by the prosecution is not an acceptable argument. That is a tactical approach; it is not facing up to guilt. We must make a distinction, of course, between the right of an accused person to decline to answer questions or to withhold cooperation, none of which can be held against him at his trial, from a situation of a plea of guilty where a person is seeking credit from the court, sentencing him for the fact that he has accepted his responsibility and for that purpose he must be taken as knowing that he is guilty. He is not entitled to seek the full benefit of the plea where he has in fact sought to have the best of both worlds: full credit for an early plea of

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guilty and the tactical advantage of possibly avoiding guilt by delaying his plea. So the court rejects the criticism of the learned trial judge in that respect.

The court considers the learned trial judge balanced all of the mitigating factors that have been advanced in a fair way and that she could not be considered to have committed any error in imposing the sentence of 7 years imprisonment. Accordingly the court will dismiss the application for leave to appeal.

DPP -v- Glen Geasley

 

[2009] IECCA 22 (24 March 2009)

THE COURT OF CRIMINAL APPEAL

Record No. Court of Criminal Appeal 72/08
Fennelly J.
Budd J.
MacMenamin J.

BETWEEN
GLEN GEASLEY

APPLICANT
AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of the Court delivered the 24th day of March 2009 by Mr Justice Fennelly

1. This is an application for leave to appeal in a case where the applicant has pleaded guilty at his trial. He says that the learned trial judge, by ruling admissible evidence of certain telephone conversations, abandoned the principle of stare decisis and denied him the protection of the law. Thus his trial lacked the fundamental attributes of a fair trial so that he was left with no option but to plead guilty.

2. The applicant was tried at Cork Circuit Criminal Court before His Honour Judge Patrick Moran and a jury on three counts of conspiracy to possess firearms or ammunition and one of an attempt to possess firearms. The Trial commenced on 12th February 2008. On the ninth day, the applicant pleaded guilty to Count 2 on the indictment which was as follows:
“Glen Geasley and other persons did on a date between the 22nd February 2007 and 20th April 2007, both dates inclusive and within the State, conspire together to commit crime(s) punishable by law, namely:- Possession of firearms to wit two RPG7 rocket launchers, five AKM assault rifles 7.62 x 39mm calibre, 5 AKR 15 semiautomatic assault rifles .223 inch calibre, two Uzi submachine guns 9mm calibre, three Smith & Wesson 9 mm calibre semi automatic pistols, two Browning semiautomatic pistols 9 mm calibre, five Sig Saur 9mm calibre semiautomatic pistols in such circumstances as to give rise to a reasonable inference that such possession was not for a lawful purpose”.

3. The Director accepted that plea and entered a nolle prosequi in respect of the other counts. The learned trial judge sentenced the applicant to a term of imprisonment of twelve years with five years suspended.

4. The gist of the case against the applicant was that, with others, one of them a co-accused, he conspired to obtain a large cache of weapons and ammunition for the unlawful purposes of a group of people engaged in organised crime in Limerick.

5. Virtually all of the evidence resulted from an under-cover operation organised by An Garda Síochána in cooperation with an English law-enforcement body called the Serious Organised Crime Agency (SOCA). Two enforcement officers employed by SOCA, using the cover names, John and Raj, were the State’s central witnesses. John and Raj met the applicant at a warehouse in London on 22nd February 2007. They posed as arms dealers. They showed him photographs of weapons on a laptop and quoted prices. They each had a clean mobile phone, which was used solely for contact with the applicant. They supplied the applicant with the numbers for these mobiles. A significant part of the incriminating evidence against the applicant consisted of telephone conversations between the applicant and SOCA agents via these mobiles.

6. The applicant has put forward fifteen grounds of appeal. They can be summarised as follows:

1. Four grounds relate to the decision of the learned trial judge to admit evidence of the contents of telephone conversations with the mobile phone numbers supplied by SOCA; the complaint is that the learned trial judge refused to follow the decision of this Court in Director of Public Prosecutions v Dillon [2002] 4 I.R. 501, (hereinafter “Dillon”), holding that case to have been decided per incuriam. The learned trial judge, it is submitted, thereby abandoned the doctrine of stare decisis and accordingly the trial lacked an essential characteristic of a criminal trial in accordance with law.
2. Three grounds relate to rulings of the learned trial judge upholding a claim of privilege advanced by the prosecution with the effect of denying to the defence disclosure of material which was potentially relevant to his guilt or innocence, having regard to the defence which the applicant wished to advance, namely entrapment and abuse of process.
3. It is submitted the learned trial judge effectively directed the proofs of the prosecution in respect of the calling of expert evidence of foreign law regarding the powers of SOCA, while effectively denying that right to the defence by refusing access to the relevant disclosure material.
4. The learned trial judge is said to have erred in refusing to discharge the jury, firstly, by reason of the prejudicial opening speech of the prosecution and, secondly, by reason of adverse media coverage.
5. The learned trial judge, it is submitted, erred in admitting evidence of audio and video recordings of the meeting in the London warehouse mentioned above without proof of the identity of speakers on the tapes and while the recordings contained hearsay evidence.
6. Two general grounds allege absence of equality of arms between prosecution and defence and that the rulings of the learned trial judge meant that the trial was not in accordance with law.

The applicant’s right to appeal

7. The first and principal matter to be considered is whether, notwithstanding his plea of guilty, the applicant should, exceptionally, be permitted to pursue his appeal. That question depends, in turn, on his contention that he was left with no choice but to plead guilty by reason of an incorrect and unlawful ruling admitting the evidence of the mobile-phone conversations, a ruling made in defiance of the binding decision of this Court in Dillon.

8. The applicant’s basic point is that the telephone conversations between the applicant and the SOCA agents were unlawfully intercepted for the purpose of the relevant legislation and should have been ruled inadmissible pursuant to the ruling of this Court in Dillon. The applicant had conversations with “John” and “Raj,” believing them to be arms dealers, whereas they were in fact law enforcement officers.

The plea of guilty

9. The learned trial judge conducted a voir dire. He heard the evidence of “John” and submissions from counsel in the absence of the jury. He ruled that the evidence that had been obtained by means of the mobile phones, notwithstanding the decision in Dillon, was lawfully obtained.

10. On the day following that ruling, counsel for the applicant informed the court of trial that he was “under strict instructions to adopt a particular course” on the following Monday. The applicant pleaded guilty, as already stated, and the prosecution entered a nolle prosequi on the other counts.

11. The submissions on behalf of the applicant on this application explain the plea of guilty as following from the ruling of the learned trial judge that Dillon had been decided per incuriam. They continue:
“In so deciding he [the trial judge] effectively rendered the doctrine of stare decisis inapplicable. It is submitted that without the phone evidence in the trial…there could have been no trial. As a result of this the appellant (sic) had no option other than to plead guilty. His conviction is unsafe and unsatisfactory.

A trial without the application of the doctrine of stare decisis is not a trial in accordance with the Constitution. No conviction recorded in the case of such a trial is a sound conviction regardless of whether or not the accused pleaded guilty.”

12. Counsel for both parties have referred the Court to two cases in each of which this Court entertained an appeal notwithstanding a plea of guilty: DPP v B [2002] 2 I.R. 246; DPP v Lynch (Unreported 27th July 1999). Both cases were concerned with how the advice of counsel had influenced the accused in making his decision to plead guilty. In each case this Court actually heard evidence of the circumstances surrounding the decision to plead. In the first, the appeal was allowed; in the second it was dismissed. These cases establish the principle that, in an exceptional case, a plea of guilty is not an insuperable bar to an application for leave to appeal against conviction. It was necessary in each case for the Court to hear evidence in order to enable an explanation to be given as to why the accused had pleaded guilty. That was because the advice of counsel was central to the argument. That need not be so in every case. In some cases the judge will have made a crucial ruling against the defence on a matter of law.

13. Section 32 of the Courts of Justice Act, 1924, as amended by section 3(6) of the Criminal Procedure Act, 1993 provides:
“Leave to appeal shall be granted by the Court of Criminal Appeal in cases where the court is of opinion that a question of law is involved, or where the trial appears to the court to have been unsatisfactory, or there appears to the court to be any other sufficient ground of appeal, and the court shall have power to make all consequential orders it may think fit, including an order admitting the appellant to bail pending the determination of his appeal or application for leave to appeal.”

14. The Court is satisfied that this section is broad enough to encompass a right to appeal, or apply for leave to appeal, notwithstanding a guilty plea, in an appropriate case. The section has been applied pursuant to statute to the Court as it is at present constituted

15. Clearly, a convicted person, who has pleaded guilty, has no automatic right to appeal. He has openly, publicly and formally acknowledged his guilt. In many cases, such as the present, the plea will have been accepted by the prosecution in lieu of proceeding with the prosecution on other counts in an indictment.

16. The present case is quite different from the two previous decisions mentioned above. It is not suggested that the applicant’s plea of guilty was the result of any particular advice from counsel or otherwise. Rather, the plea is said to have resulted from the legal rulings of the trial judge. The applicant contends that, as a result of the ruling to admit evidence, he was left with no option but to plead guilty.

17. The 2003 edition of Archbold (paragraph 7-46b) contains the following:
“By far the most common ground of appeal, where there has been a plea of guilty, is that as a result of an erroneous ruling on a point of law by the trial judge, the appellant pleaded guilty or changed his plea to guilty. To succeed, however, it must be shown that the erroneous ruling left the defendant with no legal escape from a verdict of guilty; and a conviction would not normally be regarded as unsafe where the defendant was influenced to change his plea because he recognised that, as a result of a decision to admit certain evidence against him, his case on the facts was hopeless…”

18. Woolf L.J., delivering the judgment of the Court of Appeal in England in R. v Preston (1992) 95 Cr. App. R. 355 at 381said:
“It is not any error of law or any irregularity which is sufficient for this purpose. In Hunt (1986) 82 Cr. App. R. 244, 249, [1986] Q.B. 125, 132 Robert Goff L. J., in our judgment, indicated the proper approach when he stated in respect of a plea of guilty after an erroneous ruling on a point of law that “since the appellant’s plea of guilty was founded upon that ruling, we shall grant him leave to appeal from his conviction.”
“In our judgment before an appellant who has pleaded guilty can rely upon an erroneous ruling of law or a material irregularity, he must show that his plea was “founded” upon the erroneous ruling of law or material irregularity.”

19. In the view of the Court, an applicant such as in the present case must show that his decision to plead guilty followed on an erroneous ruling or material irregularity of a fundamental kind, such that proceeding with the trial would have been pointless. The court should not allow tactical use to be made of the plea of guilty to obtain a new trial in more favourable circumstances.

20. In the present case, the applicant does not flinch in his submissions from alleging that the learned trial judge has committed a fundamental error of law. He claims that the learned trial judge abandoned the fundamental principle of stare decisis, and that, consequently, the applicant did not have a trial in accordance with law.

21. The question is whether the learned trial judge in fact committed such a fundamental error.

The error alleged

22. The essential basis of the applicant’s objection to the admission of the evidence of contents of telephone conversations between himself and the SOCA officers was necessarily, even if not expressed in those precise terms, that the evidence was unlawfully obtained. It had been contended throughout that section 98 of the Postal and Telecommunications Services Act, 1983 (“the Act of 1983”) is capable of applying to the communications, although many of them would appear to have been made outside the jurisdiction. None of the submissions in this court address the question of whether the legislation could affect telephone communications made outside the jurisdiction and this judgment does not concern that issue. It is necessary, however, to examine both the decision in Dillon and the relevant legislation. The problem, as will be seen, is that Dillon was based on an interpretation of a statutory provision that had been effectively repealed and replaced at the time that decision was pronounced. The provision interpreted had been replaced by a quite different provision. Mr Padraig Dwyer, Senior Counsel, on behalf of the applicant, says that the statutory change could make no difference to the status of Dillon so far as the Circuit Court was concerned: the learned trial judge was bound to follow Dillon, regardless of the legislative change. Mr Dwyer went so far as to argue that the learned trial judge was not entitled to interpret or apply the amended provision as passed by the Oireachtas.

23. In Dillon, the basic facts were as follows. A Garda Inspector came into possession of a mobile phone which he had reason to believe was likely to be used for the purpose of arranging unlawful drug dealing. He answered a number of calls which were made to this phone. One of these was from a man with a Limerick accent who asked for Nicky. The Inspector said that Nicky was not available and asked who the caller was. The caller said he was Joe. The caller asked who the Inspector was and the latter said that he was Mick, which was not, of course, his real name. It was an invented name. This led to a conversation about drug dealing, incriminating to the caller.

24. Thus, the Inspector assumed a false name for the purpose of the conversation and did not, of course, identify himself as a member of the Garda Síochána. He assumed the persona of someone who was privy to a previous arrangement with “Nicky”.

25. The judgment of this Court, delivered by Hardiman J, identified the issues as being: whether the action of the Garda Inspector in listening to the conversation on the mobile phone amounted to an “interception” for the purposes of section 98 of the Postal and Telecommunications Services Act, 1983; if so, whether the interception was unlawful or constituted an unconstitutional invasion of a right to privacy; and finally the consequences of such a finding for the admissibility of the evidence. The Court went on the examine the provisions of the Act of 1983 and of the Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 (“the Act of 1993”).

26. The Court pointed out that section 98(1) of the Act of 1983 creates an offence. It provided (as it still provides) as follows:
(1) A person who—

( a ) intercepts or attempts to intercept, or

( b ) authorises, suffers or permits another person to intercept, or

( c ) does anything that will enable him or another person to intercept,

telecommunications messages being transmitted by the company or who discloses the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message shall be guilty of an offence.

27. The judgment in Dillon then quoted section 98(5), as originally enacted, which provided the following definition of “interception” for the purposes of subsection (1):
“In this section, “interception” means listening to, or recording by any means, or acquiring the substance or purport of, any telecommunications message without the agreement of the person on whose behalf that message is transmitted by the company and of the person intended by him to receive that message.” (emphasis added)

28. The judgment, in quoting that provision, used the present tense, “provides,” as if that provision were still in force, which it was not. It had been amended by replacement with a different provision by section 13(3) of the Act of 1993 set out below.

29. The judgment in Dillon gives an account of the history of phonetapping in Ireland and mentions the decision in Kennedy v Ireland [1987] I.R. 587. It is not necessary to review any of that material for the purpose of this application. It also referred to provisions of the Acts of 1983 and 1993, permitting the authorisation of the interception of telephone conversations. In that case, as in this, no authorisation had been sought or granted.

30. The judgment then engaged in detailed examination of the provisions of the version of sub-section 5 which had been contained in the Act of 1983, as originally enacted. At several points, it referred to the word “agreement” in that sub-section, adding that the issue turned on that term. The judgment proceeded to an analysis of the civil law of contract in its search for an applicable definition of the term “agreement.” The court concluded that no agreement which would take the action of the Inspector in listening to the telephone conversation out of the category of “interception” had been demonstrated. This, in turn, led the court to the conclusion that the Inspector’s listening to the call in question was not mandated by law and that the prosecution had failed to establish any facts or circumstances justifying the action of listening to the telephone conversation.

31. In fact, at the time Dillon was decided, sub-section (5) no longer existed in the form in which it had been originally enacted. It had been replaced, by section 13(3) of the Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993, which provides as follows:
“The following subsections are hereby substituted for subsection (5) of the said section 98:
“(5) A person who discloses the existence, substance or purport of a telecommunications message that was transmitted by the Minister before the vesting day and intercepted or who uses for any purpose any information obtained from any such message shall be guilty of an offence.
(6) In this section ‘intercept’ means listen to, or record by any means, in the course of its transmission, a telecommunications message but does not include such listening or recording where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording, and cognate words shall be construed accordingly.”

32. Thus, sub-section 6 replaced sub-section 5, as originally enacted. There is no longer any need for “the agreement of the person on whose behalf that message is transmitted…” There is no interception for the purposes of section 98(1) where either the transmitter or “the person intended to receive the message has consented to the listening or recording.” It is not unlawful for a person to receive a message from another person, even where that other person does not consent to its being listened to or recorded.

33. It is not, in any event, a normal or natural use of the expression “intercept” to apply it in such circumstances. An interception occurs when a third party intervenes and takes or, in the case of a conversation, listens to something passing between two other parties. The interceptor is a third party.

34. The true burthen and entire thrust of Mr Dwyer’s argument on behalf of the applicant is not related in any way to the correct interpretation of the amending provisions of the Act of 1993. He abstained both in the court of trial and this Court from any detailed examination of its effect. His argument is based on the doctrine of stare decisis. He submits that the learned trial judge was bound to follow the decision of this court in Dillon. Counsel did not and could not dispute that section 98(5) of the Act of 1983 had been amended prior to the decision in Dillon. Nor could it be disputed that this court had interpreted that provision as if it had never been amended. He submitted, however, that the court must be regarded as having taken the amendment into account, even though it is not mentioned in the judgment. He argued that the Circuit Court was bound to follow and apply the decision of this Court, being a superior court.

35. The Court now turns to a consideration of this issue. It will deal, firstly, with the effect of the amendment of section 98(5) on the admissibility of the evidence presented by the prosecution in this case. Secondly, it will consider the argument based on stare decisis.

36. The Court is quite satisfied that the actions of “John” and “Raj” in listening to and recording the telephone conversations they had with the applicant were not contrary to section 98(1) of the Act of 1983. They did not “intercept” those conversations within the meaning of that term as it is now defined in section 98(6) of the Act as amended. They consented to the receipt and recording of the conversations.

37. It should be noted that the applicant’s first four grounds of appeal are based entirely on this argument founded on the failure of the trial judge to apply the doctrine of stare decisis: the learned trial judge was obliged to apply the Dillon ruling. There is no ground of appeal suggesting that the evidence should have been excluded on a correct interpretation of the amended provision or, for example, on any ground based on infringement of a right of privacy.

38. The central remaining question is, therefore, whether the learned trial judge was bound to apply the ruling in Dillon, in circumstances where the decision was entirely, though mistakenly based on the interpretation of a provision of a statute that was no longer in force.

39. The doctrine of precedent, known under the Latin label stare decisis, plays a central role in our law. It is the means by which the common law achieves, so far as possible, uniformity, consistency, predictability and certainty. The Court fully accepts the helpful and learned submissions of counsel for the applicant on this subject. Kingsmill Moore J in speaking for a unanimous Supreme Court in Attorney General v. Ryan’s Car Hire [1965] I.R. 642 expressed the matter succinctly:
“The law which we have taken over is based on the following of precedents and there can be no question of abandoning the principle of following precedent as the normal, indeed almost universal procedure. To do so would be to introduce into our law an intolerable uncertainty”

40. The Court, in that case, was, of course, exploring the extent to which the Supreme Court itself, being a court of final resort, was bound by its own earlier decisions. In discussing this issue, the learned judge cited extensively from English authority, noting particularly a dictum of Lord Halsbury to the effect that a decision of the House of Lords is conclusive and binding. He then proceeded:
“Faced with the hypothesis that a case might have been decided in ignorance of the existence of some relevant statutory provision or in reliance on some statutory provision which was subsequently discovered to have been repealed, he [referring to Lord Halsbury] suggested that it would not be a binding authority because it was founded on a mistake of fact. The same reasoning would be applicable if the decision were given in ignorance of an earlier authority of compelling validity. Where a point has been entirely overlooked, or conceded without argument, the authority of a decision may be weakened to vanishing point.”

41. It must be added that the doctrine of precedent applies with particular force to the decision-making work of inferior courts: the term is not here used pejoratively, but merely to designate a court’s place in the judicial hierarchy. An inferior court is bound to follow the decisions of courts of superior status, in particular of courts which decide appeals from it. The authors of “J.M. Kelly: The Irish Constitution” (4th ed. Par 6.3.133) cite an unreported Supreme Court decision, McDonnell v Byrne Engineering Co. Ltd. (Irish Times 4th October 1987), where O’Higgins C.J. stated that the Supreme Court, as the final court of appeal:
“had the duty, when necessary, to declare what legal principles should apply to cases that were reviewed by the Court. Where necessary it had the duty to lay down guidelines for all courts and all judges as to the manner in which such cases should be tried. It was equally the duty of all other courts and judges to follow directions as to law and procedure as given by the Supreme Court.” (emphasis added)

42. The submissions of the applicant correctly state that, within the hierarchical structure of the Court system, the authority of precedent is vertical and that lower courts are bound by decisions of higher courts. That means also that lower courts are bound to follow and apply relevant decisions of higher courts, even when they disagree with them and even when such disagreement appears well founded.

43. The notion of a decision reached per incuriam is an essential part of the doctrine of stare decisis. Where a court has reached a decision without taking account of a relevant argument, an important judicial precedent or a relevant statutory provision, its decision may be disapproved in a later case, by a court of concurrent jurisdiction. Its authority, to borrow the language of Kingsmill Moore J, may be reduced “to vanishing point.” Normally, it will remain binding, however, on courts of inferior jurisdiction.

44. The present case presents an unusual, even an extreme example of a court deciding a matter without making any reference to the legal provision which was actually in force. The Dillon decision was entirely founded upon the interpretation of a statutory provision which was no longer in force. The decision turned on the absence of any evidence of an “agreement” such as would have been required to take the case out of the definition of “interception.” The statute in force, however, no longer referred to any agreement. Faced with this unusual, even unprecedented, situation, the learned trial judge decided, at the urging of counsel for the prosecution, that he was not bound by Dillon.

45. This Court is satisfied that the learned judge was correct in his ruling. Insofar as Dillon stood as a precedent, it conveyed at most a binding interpretation of section 98(5) in its original form. It was not an authority on the interpretation of the new provision introduced by the Act of 1993. In that sense, it was entirely academic, except for its effect on the application it decided. Once it was clear that the sub-section was no longer in force, Dillon ceased to be relevant. A trial judge is not only bound by decisions of this court and of the Supreme Court. The doctrine of precedent is not the sole source of law in the State. A judge is equally bound to give effect to legislation passed by the Oireachtas which is declared by the Constitution to be the sole and exclusive maker of our laws.

46. The learned trial judge was faced with a direct and explicit conflict between the decision in Dillon, which made proof of an “agreement” necessary and the provisions of sub-section (6), introduced in 1993, which not only did not require an “agreement” but made express provision that consent of one party to a telephone conversation sufficed to take the matter outside the section. The reason for the conflict was clear and obvious to the judge: the court had interpreted the earlier and not the later provision. The position in which the learned judge found himself was exactly the same as if section 98(5) had been in force in its original form but replaced in the intervening time. Here that event had occurred, but before the decision in Dillon.

47. The report of Dillon contains no account of the submissions of the parties. On page 512, the judgment refers to the submissions of counsel for the Director of Public Prosecutions as being to the effect that the actions of the Garda Inspector had not amounted to an “interception.” It then states that this point has been resolved against him on the basis that no “agreement” had been established. All this strongly suggests that the amending provision had not been drawn to the court’s attention.

48. In the opinion of this court, the learned trial judge was not only entitled but bound to apply the statutory provision and to give effect to the law as passed by the Oireachtas.

49. It follows that the application for leave to appeal should be rejected on this ground alone.

50. However, the Court would also reject the application, even in the light of the Dillon analysis, by distinguishing the facts of this case. It was clear from the facts in Dillon that the transmitter of the telephone messages which were heard by the Inspector intended them to be conveyed to another person, identified as “Nicky.” The Inspector said that Nicky was not available. He identified himself (the Inspector) as Mick. In this case, on the other hand, the applicant met both “John” and “Raj” and intended to send telephone messages to them, i.e., to those actual people. He did not know, of course, that “John” and “Raj” were law enforcement officers and not arms dealers. The judgment in Dillon speaks of the Inspector’s concealment of his identity and says: “The Inspector acted in this way to facilitate the detection of a serious crime. Apart from the provisions of the Act, this seems an intelligent and indeed a natural way for a detective to behave.” Thus, as one would expect, there is no intrinsic objection to the concealment of their identity by law enforcement agents reasonably engaged in the investigation of serious crime. A great deal of investigation of serious crime would be rendered impossible or extremely difficult, if it were otherwise.

51. Finally, it is, of course, clear and is not contested, that the Court considers that it has itself the power to depart from the precedent of Dillon. For the reasons already given, it is clear that Dillon cannot be regarded as providing a binding interpretation of section 98(5) of the Act of 1983, as amended by section 13(3) of the Act of 1993. Having done so, it must inevitably rule that the challenged evidence of the telephone conversations was admissible. Even assuming that the learned trial judge was bound by Dillon and should not have admitted the evidence, should the court, for that reason, allow the appeal and direct a retrial even though it is satisfied that the evidence was admissible in law and will be admissible at a future trial? Such a procedure would be patently absurd. It would defeat the very object of the doctrine of stare decisis, as propounded to us, namely the avoidance of intolerable uncertainty.

52. From all of the foregoing, it follows that the applicant has failed to establish the premiss upon which he seeks leave to appeal against his conviction upon his plea of guilty, namely that his trial, without the application of the doctrine of stare decisis, was not in accordance with law. On the failure of that premiss, he is not entitled to maintain his application for leave to appeal. He is not entitled, therefore, to maintain the other grounds of appeal. It might be added that the applicant was fully aware from the commencement of his trial that privilege was being claimed in respect of a large part of the investigation. The judge ruled against him on that point on the first day. His plea of guilty was not related to and is not said to be based on that ruling.

53. The Court will dismiss the application for leave to appeal.

People (DPP) v Tiso

 

[2018] IECA 377
JUDGMENT of the Court delivered on the 5th day of December 2018 by Birmingham P.
1. This is an appeal against severity of sentence. Mr. Tiso was sentenced to 14 years imprisonment with one suspended in respect of counts of rape and aggravated sexual assault respectively. Lesser concurrent sentences were imposed in respect of offences of rape under s.4 of the Criminal Law (Rape) (Amendment) Act 1990, being that of oral rape, and assault causing harm under s.3 of the Non-Fatal Offences against the Person Act 1997.

2. The background to the matter before the Central Criminal Court and now this appeal is to be found in events that occurred on 18th January 2016 in the Harcourt Street/Montague Lane area of Dublin city. It should be explained that the injured party was born on 3rd August 1992 and the appellant was born on 17th March 1985. Both appellant and injured party are Brazilian nationals. On the evening in question, ‘Diceys’, one of the clubs on Harcourt Street, was holding a Brazilian night. Both the injured party and the appellant were in attendance. The facts were summarised by the trial judge as follows:

“[f]rom the evidence, which included evidence of CCTV footage, the injured party was intoxicated and had also taken an Ecstasy tablet. She was, as a consequence, clearly in a very inebriated condition. The accused man worked in the rickshaw business . . . there is a rickshaw garage located in Montague Lane. The company for which the accused man worked has two rickshaw garages and the accused man works out of the Thomas Street garage but would have been fully aware of the location of the garage at Montague Lane. The injured party had taken an Ecstasy tablet and another Brazilian man, a mutual acquaintance of both the accused the injured party, became aware of that and was concerned for her. He asked, as a consequence, for Mr. Tiso to remain with the injured party while he got her some water. Security staff in the club were concerned about the injured party and requested that she leave the club. CCTV footage showed that she needed two members of the security staff to assist her outside the door of the club. Mr. Tiso can be seen on the CCTV footage walking behind her as she is assisted by the security men in leaving the club. The footage shows him putting an arm on her shoulders and Mr. Tiso, the accused man, and the injured party then proceed to leave. They proceed down nearby Montague Street where the injured party can clearly be seen in inebriated condition. It is clear from the CCTV footage that she falls flat on her back and she bangs her head. She is then assisted upright, but with some great difficulty by the accused man and is then brought down Montague Lane. CCTV footage shows Mr. Tiso leaving this particular area, which is a very quiet area, 40 minutes later, leaving behind the injured party who is discovered in what can only be described as a shocking condition by two men who immediately go to her assistance. One of the men, described to Gardaí, seeing a girl lying on the ground between two parked cars. He noted that her leggings were around her ankles, that she was bleeding and that a jacket covered her stomach and lower body. Her legs were spread apart and the gentleman thought that she was in fact dead. The gentleman describes a trail of blood coming from her head, her bra was exposed and he noticed blood on the ground. Gardaí were called and Gardaí told the caller to seek an ambulance and he did so. The injured party was initially brought to St. James’s Hospital. There was concern that she had been sexually assaulted as a result of what the medics saw and as there was blood in particular on the mid-body region noted underneath her on the stretcher. That having been noted in the A&E Department of St. James’s Hospital, the injured party was transferred to the Rotunda Hospital. She was examined there and was found to have a tear, a perineal trauma, which was too painful to examine. She was, as a consequence, sedated and a laceration was found to the wall of the rectum and the anal canal. She was then transferred to the Mater Hospital, examination revealed a tear to the anal sphincter. This required surgery in order to repair that tear and a stoma was required in the circumstances. She remained in hospital for approximately of one month. Surgery was required and the medical evidence that it was hoped to have the stoma reversed. She was on a waiting list for that procedure. She requires physiotherapy and it is hoped that the reversal procedure will have a successful outcome.”
3. In her summary, the sentencing Judge did not refer to the fact that the evidence before the Central Criminal Court indicated that the injured party was no longer capable of giving birth naturally, but in the event of becoming pregnant, would require a Caesarean section. Indeed, since then, the victim has had to face this reality.

The Judge’s Approach to Sentencing
4. The sentencing Judge commented that these were undoubtedly among the most serious of offences, involving a violent and callous sexual assault perpetrated on a vulnerable, inebriated young woman, leaving her with horrific and unimaginable consequences with which she will have to live for the rest of her life. She said that to her mind, the aggravating factors were:

i. The nature of the offences,
ii. the appalling injuries suffered by the injured party as a result of the conduct of the accused;

iii. the taking advantage of a very vulnerable young woman;

iv. leading her to a quiet area known by him to be such;

v. leaving the injured party in a dreadful state in the aftermath of his violation of her;

vi. the severe emotional and mental impact on the injured party and

vii. the violence of the attack and the consequential harm to her.

5. The sentencing Judge referred to a number of mitigating factors present in the case. The first of those being the guilty pleas at the earliest possible opportunity, this took the form of entering signed pleas of guilty in the District Court on 26th April 2016 which were affirmed before the Central Criminal Court on 7th June 2016, the sentencing Judge had been told that the plea was of enormous assistance to the injured party, the fact that there were admissions to the Gardaí and that remorse was expressed. So far as admissions to the Gardaí are concerned, the position is that following his arrest, the accused was interviewed on five occasions. On the first four occasions, he suggested that consensual sexual had occurred, but in the fifth and final interview, he admitted his involvement in the offences.
6. The sentencing Judge is criticised by the appellant for what she had to say in relation to his remorse. This is a reference to the fact that the sentencing judge noted that Mr. Tiso had said in interviews that he too had suffered trauma, an approach that she felt was consistent with what emerged from a psychologist’s report that was put before the Court. The sentencing Judge said that she was also taking into consideration that he was a non-national and the difficulties that would present for him serving a prison sentence in this jurisdiction. The sentencing Judge took into consideration that he was a well-educated young man with a good work history and a person of no previous convictions. She then identified sentences of eighteen years as appropriate for the vaginal rape and aggravated sexual assault offences, but mitigated these having regard to the factors present to 14 years and suspended the final year of that sentence conditional upon the accused entering a bond and conditional, too, that he would leave the State upon his release from prison and remain outside the State for a period of ten years.

Grounds of Appeal
7. The Grounds of Appeal advanced by Mr. Tiso were as follows:

i. Fixing a notional or pre-mitigation starting point that was disproportionate and excessive;
ii. Further or in the alternative in failing, when considering the appropriate reduction in sentence, to have any or any adequate regard to the mitigating factors in all the circumstances of the case;

iii. Further or in the alternative the sentence imposed was too lengthy given that the Learned Sentencing Judge intended (and so ordered) that the Applicant leave the jurisdiction at the conclusion of his sentence;

iv. the sentence imposed was excessive in all the circumstances.

Discussion
8. It is said that the headline sentence identified, eighteen years before regard was had to mitigating factors, was too high and out of line with sentences imposed in other cases. In the course of written submissions, the appellant has referred to a number of comparator cases. It is to be noted that a number of these are undue leniency reviews. In those circumstances, the Court recalls that it has, on a number of occasions in recent times, expressed some doubt about the usefulness of reliance on undue leniency review cases in the context of appeals against severity of sentence. We have pointed out that in the first undue leniency case, the case of DPP v. Byrne [1995] 1 ILRM 279, the point was made that it would rarely be of assistance to ask whether a more severe sentence would have been upheld. By the same reasoning, it must be the case that while it may be that sentences more severe than those imposed at trial or by the Court of Appeal/Court of Criminal Appeal on review might well have been imposed and had they been imposed might well have been upheld. The case of DPP v. Vardoshilli [2009] IECCA 14 was a case where a sentence of ten years imprisonment was imposed at trial and reduced to one of eight years. It appears that the concern of the Court of Criminal Appeal was that the sentencing court had not adverted to his non-national status and the fact that this would create particular difficulties and would cause additional hardship to him while in prison. On that basis, two years of the ten-year sentence were suspended.

9. The case of DPP v. Zimants [2017] IECA 124 was another undue leniency review. In acceding to the application and increasing the sentence, this Court commented that even giving the maximum credit that was proper, the sentence could not have been reduced to one below ten years and that, indeed, a higher sentence than that might well have been considered. DPP v. Christopher Farrell [2014] IECA 51 was an also undue leniency review which saw sentences of six years imposed in respect of offences against two complainants increased to twelve years in each case.

10. It is worth pointing out that in a sentencing appeal the Court is not entitled to simply substitute its own opinion for that of the sentencing judge. As per DPP v. Redmond [2001] 3 IR 390, the appellant must establish that there has been an “error in principle” if this Court is to intervene. While cases may deal with similar issues or fall within certain categories, thereby providing guidance in terms of sentencing, each must nonetheless be decided on its own facts.

11. The headline sentence given by the sentencing Judge of 18 years was not an inappropriate starting point. We agree with the view that this was among the most serious of offences, with a number of aggravating factors which placed it at the upper end of the scale, and so must carry a custodial sentence that reflects same. There was no error in principle in the sentencing Judge’s approach of taking 18 years as a starting point. Yet, in considering the totality of the sentence, the Court must also be cognisant of Mr. Tiso’s early signed plea of guilty in the District Court. There is also evidence that Mr. Tiso’s solicitor indicated to the Gardaí on 26th January 2016 that his client would not be contesting the allegations and would be pleading guilty. Mr. Tiso is said to have expressed remorse to Gardaí through his solicitor on this occasion.

12. The value of a guilty plea is well-known in that it saves time and resources for all involved, but more importantly ensures that victims do not have to go through the secondary trauma of a full trial. Accordingly, the timing of a guilty plea is significant when determining the level of mitigation to be afforded to an individual who so pleads. What occurred here was highly unusual with the solicitor for the applicant making contact at a very early stage to confirm that there would be a plea of guilty and then that being followed up by the entry of signed pleas of guilty in the District Court on 26th April 2016 which were then confirmed at the first appearance in the Central Criminal Court on 7th June 2016. Eight days passed between the event itself and the indication to the Gardaí that a guilty plea would be lodged. Three months later, Mr. Tiso entered his signed pleas before the District Court. Just over a month later, these pleas of guilty were confirmed in the Central Criminal Court. The sentencing hearing itself took place on 1st November 2016. The case, outside of this sentence appeal, was complete within ten months. This Court accepts that the sentencing judge took Mr. Tiso’s guilty plea into account, but does not believe that full credit was given to the unusual circumstances in which it came about, and in particular, the fact that it involved signed pleas of guilty in the District Court. In the Court’s view, an approach of entering signed pleas of guilty in the District Court is to be encouraged and merits particular consideration.

13. The total discount for the various mitigating factors that were present, the plea in the circumstances referred to, the fact that the appellant had no previous convictions and would appear to have otherwise been of good character and that he was particularly far from home would not suggest that particular significance was attached to the fact that this was a case which, very unusually, involved signed pleas of guilty. To that limited extent, and to that extent only, the Court feels that there was some element of error on the part of the sentencing Judge. It is important to emphasise that had the case not featured a signed plea of guilty, the Court would have dismissed the appeal and upheld the sentence imposed. However, having regard to the circumstances of the plea, the Court feels that some amelioration is required.

14. There were others factors that the sentencing Judge might have referenced, and to some extent, did. Account must be taken of the fact that Mr. Tiso is a non-national whose home country is very distant and who faces a very lengthy sentence in a country that is foreign to him. The sentencing Judge did so in general terms, but did not go into his specific circumstances in any great detail. While the appellant has had the benefit of some visits from his family in recent times, this as a rare occurrence and it is unclear if it will be repeated. Mr. Tiso will not have the same access to the familial support structure as he may otherwise have had.

15. The reduction of eighteen years to fourteen years amounts to a reduction of approximately 22%. When the Court takes into account the fact that the final year was suspended and so the total time to be served was 13 years, that amounts to a reduction in sentence of approximately 28%. The Court is of the view that a sentence where the total time to be served was eleven (an approximate reduction of 39%) or twelve years (an approximate reduction of 35% ) would be more appropriate having regard to the foregoing. This is not a decision the Court takes lightly, but the unusual circumstances of the case should be fully reflected in the sentence imposed.

16. Accordingly, this Court will uphold the appeal and quash the sentence in the Central Criminal Court and replace that with a sentence of 12 and a half years imprisonment with the final 12 months suspended.

People (DPP) v O’Brien

 

[2018] IECA 333

JUDGMENT (Ex tempore) of the Court delivered on the 2nd day of October 2018 by Birmingham P.
1. This is an appeal against severity of sentence. The sentences under appeal were imposed in the Central Criminal Court (McCarthy J.) on 3rd May 2016.

2. The appellant had faced an indictment containing twelve counts. Four of the counts related to his then girlfriend and eight counts related to his then girlfriend’s mother. The offences involving his girlfriend occurred on Thursday 2nd July 2015 and then during the course of a further incident on Friday 3rd July 2015. The offences involving the girlfriend’s mother occurred on Sunday 5th July during the course of an incident which lasted approximately two hours and forty minutes.

3. The pleas entered by the appellant involved two counts of rape contrary to s. 4 (oral and anal) and one count of rape contrary to s. 48 of the Offences against the Person Act 1861 (as amended) relating to PH, his then girlfriend. At the same time, pleas of guilty were entered to rape contrary to s. 4 (oral rape), rape contrary to s. 48 of the Offences against the Person Act 1861 (as amended) and aggravated sexual assault relating to TH, mother of the appellant’s then girlfriend. At the request of the prosecution, a plea to a count of aggravated burglary which had appeared on the indictment was entered at a later stage. It was accepted by the prosecution that the pleas were entered at an early stage and that they should be dealt with as such by the trial judge.

4. While the offences involving TH, mother of the appellant’s then girlfriend, were later in time, they immediately preceded the involvement of the Gardaí and for that reason, the facts relating to the incident which gave rise to those charges were outlined first. It is convenient to take that approach once more.

5. On Sunday 5th July 2015, TH, then aged sixty years, was alone in her home. As was frequently her practice on a Sunday, she was wearing a silk housecoat/nightdress and had not got fully dressed that day. She heard a tap on the door and when she opened the door, the appellant was there. He called her a whore and before she could say anything, he pushed the door and she fell sideways. As he pushed the door in, he punched her to the face and held a Stanley knife to her throat. At this stage, he was also verbally abusing her and continuing to call her offensive names. Initially, the complainant, TH, did not recognise the intruder, but within a minute or two, she did recognise him as the appellant whom she knew to be in a relationship with her daughter, PH. She made various efforts to calm him down, at one stage going to the kitchen to make a cup of tea, but he put the Stanley knife back to her throat. TH stated “he went a bit wild at that stage”. At that point, he tried to bite her nose. The appellant dragged her by the hair away from the kitchen. She recounted being on the floor of the hallway, on her knees. She spent some five minutes in the hallway during which time the appellant hit her with her own hand. After about five minutes, he dragged her up the stairs by her hair. The appellant put a hairband in her mouth at that stage and then went through her wardrobes and found two belts from dressing gowns that were in the wardrobe. He removed all her clothing and tied her up using the two belts from the wardrobe. He undressed himself completely. He had part of one of the belts wrapped around her neck and he had her tied by the hands with the same belt, so that, in effect, her neck was tied to her hands. He told her that he would cut her throat. He told her that he would stay with her until the next morning until her daughter came to the home and then he was going to cut her throat as well.

6. The appellant attempted to anally rape TH when she was face down on the bed, but was not able to do so. He became angrier during the course of his attempts. The complainant, TH, believes that she may have passed out from time to time because, in addition to the physical assaults, he was also delivering physical blows to her. At one stage, the appellant turned her onto her back. She found it difficult to breathe. At one point, the band fell out of her mouth and then the appellant placed a bra in her mouth and the belt was tight around her neck. The appellant took TH into the bathroom: he partially lifted her because she was choking. He gave her a drink of water and he took the bra from her mouth and then said something along the lines of “I’ll wash you off” or “I’ll cool you down” and it appeared at this stage as though he was going to try and put her head into the toilet. He did not in fact do that, but rather, brought her back into the bedroom. He put TH on her back and put his penis into her mouth. The complainant’s phone rang and he could not find it and became angry. He was not erect at that stage and that appeared to be making him angrier. When he put his penis into her mouth, he told her “you better work hard now or I’ll kill you here and now”. He produced the knife and put it to her neck and her breast. TH’s belief is that at that stage, the appellant became partially erect and then raped her vaginally. Before putting his penis into her vagina, he had put his fist there. He had been punching her in the vaginal area.

7. At one point during the course of the incident, the appellant had made a call to the complainant’s daughter, his girlfriend. That message went to the Message Minder service with the result that the appellant’s girlfriend heard part of the assault on her mother and contacted the Gardaí. He was still at the scene when the guards arrived banging on the door. He tried to flee the scene with the knife, but was arrested in the back garden. During the course of the arrest, he was asked to put down the knife, but he refused, and the Gardaí used pepper spray. The appellant was described as violent and aggressive during the arrest.

8. Throughout this lengthy incident, the appellant was constantly threatening TH with the knife to different parts of her body, including her neck, her vagina and her breasts. He twice bit her nose.

9. So far as the offences involving PH, the girlfriend of the appellant are concerned, the first of these occurred on Wednesday 1st July 2015 into the early hours of Thursday 2nd July 2015. PH went to her home at about 10pm, having been drinking with the appellant earlier. The appellant was not invited into the home. PH’s mother, TH, was in the house as was a former boyfriend of PH who was helping TH with some chores. The appellant appears to have become angry because he was not invited into the house and because the other man was there. PH left with the appellant to appease him as he was staying in a hostel. On the way to the hostel, he suggested that they go to St. Kevin’s Church at the back of the school on Synge Street to have sex. It seems that they had gone there once or twice before for the same purpose. PH agreed. However, during sex, she was put to the ground and he became more forceful and aggressive than in previous sexual relations. She said to him that he was hurting her and asked him to stop. She defecated, but despite this and despite the fact that she was asking him to stop, he continued to have anal sex. He eventually stopped and they went to the hostel. There was evidence that the appellant apologised to PH along the lines of “I’m sorry, I’m sorry, I didn’t mean to”. The appellant asked PH to stay at the hostel on Thursday 2nd July 2015 and she did. They spent time together and ate dinner and both stayed at the hostel that evening. Early on the morning of 3rd July 2015, PH was awoken from her sleep by the appellant pulling her hair and they went outside for a cigarette. On the way back in, he motioned her into an adjacent bathroom and locked the door. There, he said “I’ll show you, I’ll show you, you disrespect me and I’ll disrespect you”. He said “I’ll slice you up, I’ll kill you”. He put his hand over her mouth, he stripped her, she was upset, pleading with him to stop. He then proceeded to rape her, first anally, then vaginally and then orally. On Friday 3rd July 2015, PH left the hostel and went to a friend’s house in Rush, in north County Dublin. During the day, PH and the appellant exchanged text and Facebook messages and in these, PH complained that she had been raped and she was sore and he asked if she wanted the Gardaí brought in on him. The prosecution view of the appellant’s responses was that they amounted to an acknowledgement that his actions were not truly consensual.

10. Following his arrest and subsequent detention, the appellant was interviewed and during the course of the interviews, he made a number of admissions in relation to the offences committed upon TH. While these admissions were not fully complete, they were significant and would certainly have made it difficult for the appellant to contest the case.

11. In relation to the alleged offences against PH, in response to questions, the appellant admitted that there was sexual activity at the school, but indicated that it was consensual. He described the sex as “roguish”. He denied sexual activity at the hostel.

Background and Personal Circumstances
12. In terms of the background and personal circumstances of the accused, he was born on 13th December 1968 and was forty-seven at the time of the offences. At the time all these offences were committed, he was on bail in respect of offences of false imprisonment relating to PH which had occurred on 16th November 2014, the appellant and PH continuing in a relationship after these offences were committed. Subsequently, the appellant pleaded guilty in the Dublin Circuit Criminal Court to these offences and received a sentence of three and a half years on 16th December 2015. According to the prosecution, these offences occurred in the car of PH. The appellant assaulted PH in the car on Bloomfield Avenue in Dublin 8. He then got into the driver’s seat and drove her around areas of Dublin and Kildare for a couple of hours during the course of which he assaulted her, strangled her, punched her and tied her laces together. The appellant’s previous criminal record involved matters of substance and matters of less substance. On 20th April 2007, he was sentenced to nine years’ imprisonment in respect of eight sample counts of rape of a female, committed between 2000 and 2004, the complainant in that case being his daughter who was between the ages of twelve and fifteen years at the time of offending. On 27th January 2015, he received a six-month sentence in respect of an offence of failing to notify changes in his personal details as required by the Sex Offenders Act 2001. There were also convictions for failing to appear on remand dates, a conviction for s. 3 of the Misuse of Drugs Act, for begging and back in 1990, he had received a nine-month sentence in respect of counts of assault on a Garda and a count of malicious damage.

13. At the time of the offences in question, he was living in the City Hostel in Claremont Street. He had worked as a chef at one stage and had previously been married and was the father of four children.

14. The plea in mitigation focused on the fact that early pleas had been entered and that the appellant had never sought bail. It was suggested that there were indications of belated insight. He was on a waiting list for the psychological services within the prison system. The plea in mitigation advanced acknowledged that there would have to be a lengthy sentence, but the Court was urged to impose a determinative, as distinct from an indeterminate sentence or life sentence. It is this question of whether it was appropriate to impose an indeterminate sentence, a life sentence which is at the heart of the present appeal.

15. The sentencing Court had two brief, but nonetheless powerful victim impact reports from the complainants. PH commented that her life had changed as a result of the actions of the appellant who had taken her dignity, her self-esteem, her confidence and her mental health, but mostly her belief in forgiveness and her belief that there is good in people. She explains that on the night in question, the fear that she felt was unimaginable. She says that she had not been able to work since the incident, is no longer willing to go out and socialise and that, as she puts it, she is afraid of her shadow. She is now isolated, depressed, insecure and feels so alone. Her mother, TH, describes the incident as the worst horror and fear that she had experienced in her whole life. She explained to the Court that her home had been her sanctuary, but that this was taken away from her. It should be explained that she was a person who experienced reduced mobility because of arthritis and because of that arthritis was largely confined to the house. The position is that she can now not be alone. She found that Sundays are her worst days. She describes taking the post in from the postman with a chain and latch to the door. She was housebound, she suffers from severe arthritis and reading books was a source of great comfort to her, but her eyesight had deteriorated following the beating and she also referred to the fact that her hearing had deteriorated as a result of blows to the ear.

16. The trial judge, in accordance with his usual practice, put the matter back for consideration.

17. In the course of his detailed sentencing remarks, the judge addressed the facts of the offences and also addressed the jurisprudence relating to discretionary life sentences. He referred to the offences on TH as falling into what, in his view, was the most serious possible category of offending which the Court could rationally expect to see. He commented that when dealing with offences of the utmost seriousness, one does not cast about for what one might describe as the theoretically worst possible offences, but rather, one directs one’s mind, as a person experienced in criminal law, to the question of whether the offences would be seen as being in the most serious category which might practically be envisaged. He said that he had so catergorised those offences, particularly the offences involving the mother. He then proceeded to impose life sentences in respect of each of the offences to which the accused had pleaded guilty, making these sentences consecutive to the sentence that was being served in respect of the false imprisonment which had been imposed by the Circuit Criminal Court.

18. The starting point for consideration of this issue is to be found in s. 29 of the Criminal Justice Act 1999. Section 29(2) provides:

“[t]o avoid doubt, it is hereby declared that subsection (1) shall not preclude a Court from passing the maximum sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the Court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence.”
Clearly, the reference to exceptional circumstances indicates that the legislature envisaged that the normal situation, where there was a plea of guilty, is that a sentence less than the maximum would be imposed and that the imposition of the maximum sentence would occur only in exceptional circumstances and only when those exceptional circumstances relating to the offence were present. In the course of its judgment in the case of DPP v. O’Neill, where this Court upheld a discretionary life sentence that had been imposed following the abduction and then rape, oral, anal and vaginal in the case of one young girl, and oral and anal in the case of the other, the Court commented at para. 22 and subsequent paragraphs:
“[c]ases where discretionary life sentences will be considered are likely to be rare, and those where discretionary life sentences, if imposed, will be upheld are likely to be extremely rare. There are number of reasons for this, not least the fact that if life sentences in such cases were to become usual, that they would provide a disincentive for individuals to plead guilty.”
He pointed out that that aspect was the subject commented upon by Kearns J. (as he then was) in DPP v. RMcC where he said:
“[t]here are also likely to be considerable negative implications for pending cases if the imposition of a non-mandatory life sentence becomes a norm in circumstances where there has been a plea and cooperation by an accused person. An offender with no previous convictions may well feel that the value of any plea or other cooperation will vanish into the ether if a life sentence remains a likely result when it comes to sentence. Many cases where there might otherwise be a plea might as a consequence be fully contested. This would add to the stress and upset of victims, slow down the efficient disposal of criminal work in the courts and add greatly to the cost and expense of processing individual cases. Lengthy, determinative sentences, on the other hand, may be seen as providing a more tangible mechanism for granting credit for a guilty plea and other mitigating factors in a form which is transparent and identifiable.”
19. As already indicated, central to the appeal is the contention that this was not a case where a life sentence could or should have been imposed. It said that the judge erred in two respects; firstly, in having regard to Mr. O’Brien’s personal circumstances and being influenced by those, in particular, by his prior criminal record. Secondly, it said that while the offences were obviously very serious, they were not cases of any greater seriousness than others in which lengthy determinative sentences were imposed. In fact, it said that there are cases which were, if anything, more serious which saw the imposition of lengthy determinative sentences.
20. The argument that s. 29 serves to focus all the attention on the circumstances of the offence as distinct from the offending echoes arguments advanced in the case of DPP v. Robert Duffy where the Court of Criminal Appeal delivered its decision on 19th January 2009 (Hardiman J). There, the Court was considering a discretionary life sentence that was imposed in respect of an offence of attempted murder involving a firearm, which was imposed on a person who had a previous conviction for murder also involving a firearm, in Northern Ireland. What Hardiman J. had to say merits quotation. Having set out the facts of the case, Hardiman J. commented:

“[o]n the hearing of this application, counsel for the accused did not dispute that the features summarised above were the salient features of the case. But these, he said, are all features which relate to the offender and not the offence. He submits that s. 29(2) of the Criminal Justice Act 1999 requires, as a condition precedent to the imposition of the maximum sentence ‘that the court is satisfied that there are exceptional features relating to the offence which warrant the maximum sentence’.
Counsel for the accused submits that the statute does not authorise the court to consider factors which relate to the offender rather than the offence. In this connection, he emphasises the contrast with s. 15A of the Misuse of Drugs Act 1977, as amended, which, in referring to the exceptional factors which permit the court to deviate from the mandatory sentence, describes them as ‘exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make the mandatory element of the sentence unjust in all the circumstances’.

Counsel for the accused contrasts this formulation with that to be found in s. 29 of the Act of 1999, emphasising that the latter measure does not permit a consideration of the offender, but merely of the offence itself. While counsel did not deny that the offence was a very grave one, he said that, taken alone, it would not warrant the maximum sentence, nor the total exclusion of the ordinary mitigating factors which operate in reduction of sentence.

In the opinion of the court, counsel is correct to emphasise the contrast mentioned above between the wording in s. 15A of the Misuse of Drugs Act 1977, as amended, (which, as it happens, was inserted by the Criminal Justice Act 1999) on the one hand, and that used in s. 29 of the Act of 1999, on the other. But, making every possible allowance for this point, the court is not convinced that the intention of the legislature in enacting s. 29(2) was to compel the court to consider only factors relevant to the offence and exclude those relevant only to the offender in considering whether the maximum sentence is warranted. Firstly, the subsection in question is one passed for the avoidance of doubt, the relevant doubt being a possible doubt as to the interpretation of s. 29(1). It does not appear to the court that apart from that declaratory function, it is intended to alter the pre-existing common law and this, as in The People (D.P.P.) v. Conroy (No. 2) [1989] I.R. 160, cited above, makes clear, permitted the imposition of non-mandatory life sentences.

Secondly, it is scarcely possible, having regard to our sentencing jurisprudence, to consider only the offence and exclude factors relating to the offender. On the contrary, in Professor Thomas O’Malley’s justly well-reputed work on sentencing, Sentencing: ‘Law and Practice’ (1st ed., Dublin, 2000) it is stated at p. 9:-

‘In Ireland, as we shall see, the most fundamental principle is that a sentence should be proportionate to both the gravity of the offence and the personal circumstances of the offender’.

This factor usually endures in favour of a defendant but here it justifies the consideration of the fact that this is not merely a case of attempted murder with a firearm but it is a case of attempted murder with a firearm which was available at short notice, by a man who already had a conviction for murder. Moreover, he not merely re-offended by attempting to kill another man but did so after he had been, fortuitously from his point of view, given early release from the sentence imposed on him due to the operation of the Good Friday Agreement. It is also highly relevant to consider that the judge who imposed the life sentence in Belfast in 1996 took a view of the case such that the applicant was ordered to serve at least 25 years.

It is not a speculation as to the moral character of the accused, but a plain and obvious deduction from the proven facts, that the applicant here is a dangerous man, uninhibited about killing, with access to firearms, and capable of using a firearm on a very slight pretext such as (apparently) a sense of grievance on being thrown out of a pub. The law would be an ass if it failed to draw these obvious conclusions. The imposition of a term of life imprisonment on this man is in no sense an example of preventative detention: it is a sentence richly deserved by him on a count of a proven capacity to act in a feral way at least when provoked. His behaviour merits a condign sentence and has received it. The preventative effect is incidental to this: the sentence does not exceed what is required for purely penal purposes in so aggravated a case.”

21. The Court would respectfully agree with what was said by Hardiman J. While the maximum sentence will only be imposed where there are present exceptional circumstances relating to the offence present, the sentencing Court will be required to impose a sentence that is appropriate i.e. a sentence appropriate to the offence committed by the offender before the Court for sentence. In this case, relevant to the selection of the appropriate sentence was the fact that the person who had committed the very serious offences with which the Court was dealing had relevant previous convictions which had seen him receive and serving a lengthy sentence in respect of sustained sexual offending directed against a child, his daughter. Also of relevance is that the offences were committed while he was on bail for serious offences which subsequently resulted in the imposition of a significant sentence.
22. So far as the offences are concerned, the Court endorses the view of the sentencing judge that when dealing offences of the utmost seriousness, one does not cast about for the theoretically worst possible case, rather, the judge said that one directs one’s mind to what a person, experienced in criminal law, might see as the most serious category which might actively be envisaged. The Court agrees with that approach. The judge, having made those observations, indicated that he had so characterised the offences with which he was dealing and particularly those involving the mother.

23. In the Court’s view, there were factors present which tended to put the offences into the exceptional category. There was, first of all, the fact that the Court was dealing with two complainants, a mother and daughter, with three separate incidents occurring within a short time, each very serious in its own right and each involving gratuitous violence. That the judge singled out the offences against the mother for particular mention is entirely understandable. Those offences were committed in the mother’s home to which the appellant forcibly gained entry, so violating what should have been her sanctuary. The home violated was that of a vulnerable individual, someone largely housebound. The incident was a prolonged one, lasting two hours and forty minutes. The brief summary of the facts set out earlier in the course of this judgment gives some indication of how appalling was what followed. The production of a Stanley knife, the punching, the stuffing, of first a hairband and then a bra, into the injured party’s mouth, undressing her, tying her with two belts, tying her neck to her hands, the threats to kill her, to cut her throat, accompanied by threats to stay the night and then cut the throat of her daughter as well when she would return the following day, the penetration that followed, anal, vaginal and oral. In the case of the vaginal penetration, not only was there penile penetration, but penetration with the fist. That incident was perpetrated by someone who, in the days immediately preceding it, had been involved in two separate incidents, each in its own right very serious, directed against TH’s daughter. A further dimension of the depravity is that the first victim in time found herself listening to the attack on her mother on her mobile phone.

24. The Court does not resile in any way from its comments in O’Neill that discretionary life sentences are likely to be rare and that cases where discretionary life sentences will be upheld are likely to be very rare. But the Court is satisfied that there were present here a combination of factors which justified the sentencing judge in deciding that this was a case where the imposition of life sentences was appropriate. Having decided that it was a case for the imposition of life sentences, the judge proceeded to impose life sentences on each of the offences with which he was dealing. It might be that he would, instead, reserve the life sentences for the most serious of the individual sentences and impose concurrent sentences in respect of the other offences which, while very serious, would not have reached quite the same level of seriousness as the offences selected in the imposition of the life sentences. However, the fact that he did not do so would not seem to have any significant practical implication and as much seems to have been acknowledged.

25. In the circumstances, even though the Court, had it been sentencing itself, might well have opted for the approach of preserving any life sentences that were being imposed for the most serious individual offences, does not believe that the approach actually taken amounted to such an error as to require or to justify intervention.

26. In summary, the Court has not been persuaded that there has been an error of principle identified.

27. The Court will therefore dismiss the appeal.