DPP v Dwyer
| Jurisdiction | Ireland |
| Judge | Denham J. |
| Judgment Date | 21 March 2007 |
| Neutral Citation | [2007] IECCA 10 |
| Docket Number | [C.C.A. |
| Court | Court of Criminal Appeal |
| Date | 21 March 2007 |
[2007] IECCA 10
THE COURT OF CRIMINAL APPEAL
Denham J.
deValera J.
McGovern J.
and
CRIMINAL JUSTICE ACT 1993 S2
CRIMINAL JUSTICE ACT 1993 S3
DPP v CORBALLY 2001 1 IR 180 2001 2 ILRM 102 2000 7 2445
Criminal law - Bail - Appeal to Supreme Court - Point of law of exceptional public importance - Criminal Justice Act, 1993 - Whether this case involved a point of law of exceptional public importance - Whether the respondent ought to be granted bail pending determination of his appeal to the Supreme Court
The Court of Criminal Appeal quashed the suspended sentences imposed on the respondent by His Honour Judge Con Murphy in the Circuit Court pursuant to an application by the applicant for an order reviewing those sentences. This Court imposed a sentence of two years imprisonment on each count, to run concurrently. Subsequently, the respondent sought a certificate to appeal to the Supreme Court on the ground that the determination of this court involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken. The respondent also applied for bail pending the determination of the appeal by the Supreme Court.
Held by the Court of Criminal Appeal (Denham, de Valera, McGovern JJ) in granting the certificate and admitting the respondent to bail:
1. That the point of law in this case, namely whether a sentencing court has discretion to have regard to previous sentences (where they are brought to that court's attention) imposed on the accused relating to offences committed by the accused after the commission of the crimes in issue but in respect of which he was sentenced prior to his sentencing for the crimes in issue.
2. That in the circumstances of this case, specifically the fact that the applicant was given a non-custodial sentence by the trial court and a custodial sentence by the appeal court, the sentence would be served by the time the appeal is heard and the personal circumstances of the respondent, he ought to be granted bail pending the appeal.
Reporter: L.O'S.
1. Dominic Dwyer, the respondent, has applied to this Court for an order granting him bail pending the outcome of his appeal to the Supreme Court, on such terms as the Court directs.
2. On the 2nd day of February, 2007 this Court gave judgment on an application by the Director of Public Prosecutions, pursuant to s. 2 of the Criminal Justice Act, 1993, for an order reviewing the sentences imposed on Dominic Dwyer, the respondent, by His Honour Judge Con Murphy, a judge of the Circuit Court, at Ennis Criminal Court, on the 3rd day of May, 2006.
3. This Court determined that the sentences were unduly lenient and ordered that they be quashed. The Court then imposed a sentence of two years imprisonment on each count, to run concurrently, and to date from 3rd May, 2006. The Court was aware that the respondent had not been in custody, but in the circumstances of the case, in the interests of justice, ordered that the sentences run from 3rd May, 2006.
4. An application was brought pursuant to s. 3 of the Criminal Justice Act, 1993 for a certificate to appeal to the Supreme Court on the ground that the determination involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
5. The Court has determined that the case involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal be taken to the Supreme Court. A point of law has been certified.
6. The sentences imposed by the trial court were two years imprisonment, to run concurrently, and to be suspended for two years, thus it was not a custodial sentence. This Court has imposed a sentence of imprisonment.
7. The sentence imposed by this Court, may, with remission, be served by Autumn, 2007, before an appeal may be heard by the Supreme Court.
8. On an application for bail to the Court of Criminal Appeal from a trial court the principles to be applied...
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... ... There is thus ample precedent for a sentence at the highest range when the particular facts and circumstances so demand ... 44 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 ... ...
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... ... 2. There was a single blow struck by the appellant. 3. The injuries sustained were minor in nature. 4. There was no gratuitous violence and in the course of these submissions the appellant relied on the decision of the Court of Criminal Appeal inDPP v. Dwyer [2007] IECCA ... 9 While there remains some academic discussion about whether or not previous convictions should be treated as an aggravating factor or simply result in a progressive loss of mitigation, this Court in previous cases has taken the view that relevant previous ... ...