DPP v Dreeling and Lawlor

• Jurisdiction: Ireland
• Judge: Mr.Justice Geoghegan
• Judgment Date: 13 November 2001
• Neutral Citation: 2001 WJSC-CA 1797
• Date: 13 November 2001
• Court: Court of Criminal Appeal

2001 WJSC-CA 1797

THE COURT OF CRIMINAL APPEAL

Geoghegan J.

McCracken J.

Smyth J.

12 CJA/00

DPP v. DREELING & LAWLOR

IN THE MATTER OF THE CRIMINAL JUSTICE ACT, 1993AND SECTION 2 THEREOF:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS)

Prosecution/Appellant

v.

PATRICK DREELING AND RAYMONDLAWLOR

Defendants/Respondents

Citations:

CRIMINAL JUSTICE ACT 1993 S2

DPP V EGAN 2001 2 ILRM 299

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

MISUSE OF DRUGS ACT 1977

CRIMINAL JUSTICE ACT 1993 S2(3)

DPP V MURPHY UNREP LYNCH 29.4.1997 1998/16/5926

Synopsis:

CRIMINAL LAW

Sentence

Circuit Court - Application by DPP - Public interest - Adjournment of sentencing with continuing supervision - Rehabilitation of accused - Whether matter should be returned to Circuit Court - Whether sentences unduly lenient - Criminal Justice Act, 1993 section 2 - Non-Fatal Offences Against the Person Act, 1997 section 15 (12CJA/2000 - Court of Criminal Appeal - 13/11/01)

DPP v Dreeling

Facts: The defendants had come before His Honour Judge Carroll Moran at Portlaoise Circuit Court for sentencing. The defendants had been involved in false imprisonment, threats to kill or cause serious harm, assault and possession of drugs. At that time the Circuit Court judge deferred sentencing on the basis that ongoing treatment and counselling against drug taking was likely to be successful. The DPP brought an application under s. 2 of the Criminal Justice Act, 1993 to review the sentences contending that adjourning the sentences in this manner was an exercise of undue leniency notwithstanding that an actual term of imprisonment had not been imposed. In a preliminary issue the D.P.P.'s right to bring the application in the circumstances was challenged and the Court of Criminal Appeal gave judgment in favour of the DPP (Murray J. 27/02/2001). Judgment was now given as to whether the sentences were unduly lenient.

Held by Geoghegan J. in refusing the application of the D.P.P. The offences committed by the defendants were extremely serious. In the ordinary way these offences would, warrant immediate and substantial custodial sentences notwithstanding the pleas of guilty. The learned Circuit Court judge referred to three classical attributes in sentencing namely, rehabilitation, deterrent and retribution and that these had to be balanced in dealing with any one particular case. The private welfare of the accused was something which any sentencing court was entitled to take into account provided it balanced it against other factors including the public outrage at the offence. In drug cases in particular there was a very substantial public interest in the rehabilitation of the offender. Evidence had been given before Judge Moran that both defendants were attending counselling and had benefited from same. Lengthy adjournments of sentence should never be given for trivial reasons but if there was a clear public interest in a likely drug rehabilitation resulting from ongoing treatment and counselling the court should not lightly interfere with the exercise of the Circuit Court judge's discretion. The learned Circuit Court judge did not act inappropriately in making the adjournment orders having regard to the evidence before him and, therefore, could not be said to have imposed "sentences" which were "unduly lenient". In addition having regard to the long lapse of time it would be undesirable that the court should effectively act as a court of first instance in imposing sentence at this late stage. It was far more appropriate that the matter go back to the Circuit Court for proper consideration by the Circuit Court judge and an appropriate final order made in each case.

1 Mr.Justice Geogheganon the 13th day of November 2001

2 This is an application brought by the Director of Public Prosecutions under s.2 of the Criminal Justice Act, 1993to review sentencing orders of His Honour Judge Carroll Moran at the Circuit Court in Portlaoise on the 17th of May, 2000. I adopt the expression "sentencing orders" because the learnedCircuit Court judge did not impose sentences on that date in the ordinary meaning of that term. He decided instead to defer sentencing until the Hilary Sittings 2001 because of his belief based on evidence and which I will elaborate on further, that ongoing treatment and counselling against drug taking was likely to be successful. The D.P.P. took the view that adjourning the sentences in this manner was an exercise of undue leniency by the learned Circuit Court judge and he further took the view that as a matter of law he was entitled to invoke s.2 of the Criminal Justice Act, 1993notwithstanding that an actual term of imprisonment or indeed an actual sentence had not been imposed. Understandably, a preliminary issue was raised on behalf of the two defendants as to the validity of the D.P.P.'s application. The matter was fully tried out before this court (differently composed) and in a reserved judgment delivered by Murray J. the court upheld the D.P.P.'s right to bring the application having regard to the special definitions contained in the 1993 Act. As a consequence of this appeal within the appeal, as it were, a longer time than usual has elapsed before the substantive appeal could be heard. This delay was nobody's fault but it did have the anomalous result that the Hilary Sittings, 2001 of the Circuit Court has long ago passed with the learned Circuit Court judge being disabled from dealing with thematter.

3 A further complication arises in that by virtue of an important judgment delivered by this court (Hardiman J., O'Sullivan J. and O'Caoimh J) on the 18thof December, 2000 in the case of D.P.P.v. Egan this court has taken the view that if on a section 2 application it comes to the conclusion that the sentence was unduly lenient, the "appropriate" sentence which it must then impose means a sentence appropriate to the circumstances pertaining at the time the application for review is heard. If this court were of the view both that the sentencing orders were unduly lenient and that it should substitute appropriate sentences this court would require the kind of up to date information on the two defendants which Judge Moran would require if the matters return to him. The court has already indicated that it does not intend to accede to the present application of the D.P.P. to review the sentences and, therefore, that evidential problem does not arise. Though as it happens, the court has been furnished rightly or wrongly with reports which post-date the hearing before Judge Moran and although some surprise was expressed, no great objection was taken to this at the hearing of the appeal by counsel for the D.P.P. Those particular reports appear to provide some justification for...