Brehuta v DPP and Another

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 29 November 2012
• Neutral Citation: [2012] IEHC 498
• Court: High Court
• Date: 29 November 2012

[2012] IEHC 498

THE HIGH COURT

Record Number: No. 1069 JR/2011

Brehuta v District Judge Coughlan & DPP

Between:

Monalisa Brehuta

Applicant

And

District Judge John Coughlan and The Director of Public Prosecutions

Respondents

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S6

PROBATION OF OFFENDERS ACT 1997 S1(1)

MCMAHON v LEAHY 1984 IR 525

DPP v DUFFY 2009 3 IR 613

AG, PEOPLE v POYNING 1972 IR 402

DPP v DALLY UNREP CCA 20.10.2011 2011/16/3908 2011 IECCA 104

PROBATION OF OFFENDERS ACT 1907 (UK) S1

CRIMINAL LAW & PROCEDURE IN THE REPUBLIC OF IRELAND 3ED 1951 168

GILROY v BRENNAN 1926 1 IR 482

Criminal law - Practice and procedure - Theft and Fraud offences - Penalties - Treatment - Criminal Justice (Theft and Fraud Offences) Act 2001

Facts: The applicant was charged with an offence of deception contrary to s. 6 Criminal Justice (Theft and Fraud Offences) Act 2001. She was in a retail outlet with two companions and they had been arrested and charged with offences for which they had pleaded guilty. The penalties received by the applicant and her companions substantially differed from those of the applicant and the Probation Act had been applied to the others, who were not working. The applicant disputed her conviction and fine on the basis that she had been punished for working. The applicant alleged that the first named respondent erred in law and acted contrary to natural justice and fair procedures in applying a markedly different sentencing regime to the applicant in contrast to her co -accused, without any valid reasons. It was pleaded that the applicant was unjustly penalised for working and that the decision reached was neither proportional nor rational.

Held by Peart J. that the Court would grant an order for certiorari and quash the order of the first named respondent, convicting the respondent. There did not appear to be any basis provided by the evidence given before the first named respondent to make any relevant distinction between the applicant and the other co -accused, simply on the basis that the latter was not working. There was no valid basis for the distinction. The principle of equality required the first named respondent to apply it also to the applicant given that without so doing, the applicant would have a recorded conviction and the otherwise would not.

1 On the 17 ^th October 2011 the applicant was before the District Court at Blanchardstown where she had been charged with an offence of deception contrary to Section 6 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The offence consisted of changing the price tag on a pair of sunglasses priced at €34.99 which were on sale at TK Maxx, and replacing it with another price tag showing a price of €16.99. She was in that retail outlet with two companions ("AB" and "RD") who were each also engaged upon a similar deception. All three were arrested and charged with an offence under Section 6 of the Act of 2001, and all were before the District Court on the 17 ^th October 2011 and were legally represented. None had any previous convictions and all pleaded guilty.

2 According to the grounding affidavit sworn in these proceedings by Mairéad White, solicitor, the first named respondent heard a plea in mitigation on behalf of AB, who had no previous convictions, was not working and was not in receipt of social welfare benefit, and having heard that plea dismissed the charge pursuant to s. 1 (1) of the Probation of Offenders Act, 1907 ("the Probation Act").

3 According to the same affidavit, the District Judge heard a plea in mitigation on behalf of the applicant, who also had no previous convictions, but was working and earning c. €350 per week. Having heard that plea, the first named respondent convicted the applicant and imposed a fine in the sum of €500 and gave her five months in which to pay that fine. It appears that at that point a submission was made to the first named respondent that the only distinction between the two offenders was that the applicant was working, and that it appeared therefore that she was being penalised for working, given that AB had been given the benefit of the Probation Act. That submission was rejected and he declined to vary his order.

4 Again, according to the grounding affidavit, a plea in mitigation was given on behalf of DR to the effect that he was working and earning a sum of c. €200 per week as a delivery driver. The first named respondent duly convicted him and imposed a fine of €500 with five months to pay. A similar submission was made as was made in the case of the applicant, but to no avail. It then appears that DR gave further instructions to his solicitor and informed her that he was by the date of the trial no longer working. That information was conveyed to the first named respondent who, having asked her to confirm those instructions, vacated his previous order and dismissed the charge under the Probation Act.

5 At that juncture, a further submission was made on behalf of the applicant to the effect that where three persons were before the Court facing three similar charges arising from basically the same incident, it was unfair to penalise one, the applicant, with a conviction where the only distinction between her and her two accomplices was that she was working and they were not. The first named respondent, according to the grounding affidavit, indicated that he considered that he was being fair and was taking the means of the respective offenders into consideration.

6 I should add at this point that a replying affidavit has been sworn by Garda Laura Kelly who was dealing with these matters at Blanchardstown District Court on the 17 ^th October 2012, and she does not take issue with any of the facts as deposed to by Ms. White as to how matters proceeded, except that she adds her view that the first named respondent considered the circumstances of each defendant separately and had regard to their means, and she further states that she was not called upon to give evidence.

7 The Statement of Grounds seeks to have the applicant's conviction and fine quashed, and seeks also a declaration that "similarly situated persons who come before the criminal courts on the same charge should be treated in the same manner".

8 Those reliefs are sought on the grounds that the first named respondent erred in law and acted contrary to natural justice and fair procedures in applying a markedly different sentencing regime to the applicant in contrast to her two co-accused and without any material reason for so doing. It is also pleaded that the applicant has in effect been unjustly penalised for the fact that she was working. It is pleaded also that that what has occurred breaches the constitutional guarantee to a fair trial, the right to equality, the right to earn a livelihood, as well as similar rights under the European Convention on Human Rights and Fundamental Freedoms. The applicant submits that the decision of the first named respondent is neither proportionate nor rational and is therefore unlawful.

9 The respondents' Statement of Opposition commences with the assertion that the applicant is not entitled to challenge the impugned order, because any grievance she may have can be addressed by way of appeal to the Circuit Court which is invested all necessary powers in regard to sentencing. Notwithstanding that plea, the respondents plead that the sentence is not unreasonable within the meaning to be attributed to that word under Irish law, and that it is neither disproportionate nor unfair. They submit that a District Judge is not only permitted, but is required, to have regard to the means of an offender when deciding upon the amount of a fine. It is denied also that any of the alleged breaches of rights have occurred as pleaded by the applicant in her Statement of Grounds.

10 It is important to say at the outset that this application does not in any way speak to whether or not AB and RD were treated unduly leniently, or even whether or not it was appropriate in all the circumstances to give them the benefit of the Probation Act. The issue is really whether, in circumstances where AB and RD have been dealt with in a way which avoids even a conviction being recorded against them, and on the sole stated basis that they were not working, the first named respondent was required by law to dispose of the charge against the applicant in the same manner, given that the offences of all were essentially the same, and none had a previous conviction. Or, as it is put by the applicant, was she unfairly and unlawfully discriminated against by reason only of the fact that she was working?

11 That the issue reduces to this is clear if one forgets for the moment that there were three persons before the Court on similar but different charges, and supposes for the moment that the applicant alone had been charged with an offence, pleaded guilty, and thereafter the District Judge was informed that she had no previous convictions, and was working and earning €350 per week. In such circumstances it would be difficult to argue that the District Judge acted unlawfully in imposing a fine of €500 instead of giving the applicant the benefit of the Probation Act, even if he may have had a discretion in that regard. She might well consider an appeal against the amount of the fine given the level of earnings, and the nature of the offence, but that is another matter.

12 Thus, the only basis for contending that the first named respondent acted unlawfully in the present case is that he failed to treat persons in a similar position in a similar manner. Counsel has referred to the judgment of Henchy J. in McMahon v. Leahy [1984] I.R. 525, and to reference made to that judgment by McKechnie J. his judgment in DPP v. Duffy [2009] 3 I.R. 613. That...