DPP v Grey

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,Henchy J.,GRIFFIN J.,McCARTHY J
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-SC 498
• Court: Supreme Court
• Docket Number: [S.C. No. 256 of 1985]
• Date: 01 January 1987

1986 WJSC-SC 498

THE SUPREME COURT

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

256/85

DPP v. GREY

THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

and

SCOTT GREY

Respondent

Citations:

AIR NAVIGATION & TRANSPORT ACT 1973 S16

AIR NAVIGATION & TRANSPORT ACT 1975 S6

BETTING DUTY (CERTIFIED RETURNS) REGS 1934 SI3/1934 VOL XII 303

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

CRIMINAL JUSTICE ACT 1951 S8

CRIMINAL JUSTICE ACT 1951 S8(1)

CRIMINAL JUSTICE ACT 1951 S8(2)

CUSTOMS ACT 1956 S11

DPP V GREY 1987 ILRM 4

EXCISE MANAGEMENT ACT 1827 S78

FINANCE ACT 1926 S25(1)

FINANCE ACT 1926 S25(2)

FINANCE ACT 1963 S34(11)

FINANCE ACT 1982 S69(1)(b)

FINANCE ACT 1982 S70

FINANCE ACT 1984 S78

INTOXICATING LIQUOR ACT 1927 S35

MANAGEMENT ACT 1827

PROBATION OF OFFENDERS ACT 1907 S1

PROBATION OF OFFENDERS ACT 1907 S1(1)

R V POOR LAW COMMISSIONERS 1837 6 A&E 1

R V SIMONS 1953 1 WLR 1014

REDUNDANCY PAYMENTS ACT 1967 S50

ROAD TRAFFIC (AMDT) ACT 1978 S13

ROAD TRAFFIC ACT 1949 S49

ROAD TRAFFIC ACT 1961 S26

ROAD TRAFFIC ACT 1961 S49

ROAD TRANSPORT ACT 1933 S9

ROLLINSON, STATE V KELLY 1984 IR 248 1984 ILRM 625

SOCIAL WELFARE ACT 1952 S55

SUMMARY JURISDICTION ACT 1857 S2

VERA CRUZ 1884 10 AC 59

WEST HAM CHURCH WARDENS V FOURTH CITY MUTUAL 1892 1 QB 654

Synopsis:

STATUTORY INTERPRETATION

Objective

Purposive construction - Special enactment - Subsequent general enactment - Excise offence - Special enactment providing for mandatory excise penalty - Subsequent general provisions enabling defendant to request judge to take other offences into account in awarding punishment - General provisions intended to provide additional material factors where judge has a discretion in regard to punishment applicable - General provisions not applicable where mandatory penalty imposed by statute - General provisions not applicable even though judge has power to abate by one half the mandatory penalty - ~See~ Criminal Law, sentence - (256/85 - Supreme Court - 12/3/86) - [1986] IR 317 - [1987] ILRM 4

|Director of Public Prosecutions v. Grey|

CRIMINAL LAW

Sentence

Assessment - Discretion - Exclusion - Failure of defendant to pay betting duty - Offence under regulation 15 - Conviction after plea of guilty - Section 25 of Act of 1926 providing for imposition of mandatory excise penalty of #800 - Section 8 of Act of 1951 invoked by defendant in requesting District Justice to take into account 17 offences under regulation 18 - Offences under regulation 18 taken into account by District Justice in imposing mandatory penalty for offence under regulation 15 - Act of 1951 precluding prosecution for 17 offences if properly taken into account by District Justice - Error of law - Section 8 of Act of 1951 only applicable where District Justice has a discretion in respect of sentence or penalty applicable - Held that s.8 of Act of 1951 not applicable despite fact that District Justice had power under s.78 of Act of 1827 to abate by one half the mandatory penalty imposed by s.25 of Act of 1926 - Excise (Management) Act, 1827, s.78 - Betting Duty Regulations, 1934, regs. 15, 18, - Finance Act, 1926, s.25 - Criminal Justice Act, 1951, s.8 - (256/85 - Supreme Court - 12/3/86) - [1986] IR 317 - [1987] ILRM 4

|Director of Public Prosecutions v. Grey|

1 JUDGMENT delivered on the 12th day of March 1986by FINLAY C.J. HEDERMAN J. Concurring

2 This is an appeal by the Director of Public Prosecutions against the order and judgment of Gannon J. in the High Court, dated the 26th July 1985, on an appeal brought by him (the DPP) by way of Case Stated, from a decision of District Justice T. P. O'Reilly, the District Justice assigned to the District Court Area of Castleblayney, on the grounds that the Justice's determination was erroneous in law.

3 The net issue which arises on the appeal is as to whether the District Justice before whom the RespondentScott Grey was charged with a number of offences contrary to the Betting Duty (Certified Returns) Regulations 1934, was entitled, upon convicting the Defendant of one offence to take into consideration, pursuant to section 8 of the Criminal Justice Act 1951, a number of other offences of which the Respondent admitted himselfguilty.

4 The betting regulations in respect of which the Respondent was charged were made by the Revenue Commissioners pursuant to section 25(1) of the Finance Act 1926and were "for securing the payment of the duty on bets and generally for carrying the provisions of this Act in relation to such duty into effect."

5 By virtue of subsection (2) of section 25 of the Act of 1926 it was provided as follows:

"Every person who contravenes or fails to comply with a regulation made under this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to an excise penalty of £500."

6 Section 69(1)(b) of the Finance Act 1982substituted the sum of £800 for £500 in this section.

7 By section 78 of the Excise (Management) Act 1827(7 and 8 Geo. IV, Cap. 53) it was provided

"that it shall be lawful for....... Justices of the Peace....... when they shall see cause, except in cases where there is or shall be any provision that no mitigation shall be made by the Justices of the Peace and they are hereby respectively authorised and empowered to mitigate any penalty incurred for any offence committed against this Act or any other Act or Acts of Parliament relating to the revenue or excise for which any information shall have been exhibited before such....... Justices....... as they the said Justices respectively in their discretion shall think fit so as such mitigation shall not reduce such penalty to less than one-fourth part thereof; and that every such mitigation and payment thereupon accordingly made shall be a sufficient discharge of every such penalty to the person or persons convicted of such offence;"

8 It was provided by section 70 of the Finance Act 1982that one-half should be substituted for one-quarter in section 78 of the 1827 Act, thus leaving the provision one for mitigation provided that it did not reduce the penalty below one-half.

9 Section 8 of the Criminal Justice Act 1951reads as follows:

10 2 "(1) Where a person on being convicted of anoffence admits himself guilty of any other offence and asks to have it taken into consideration in awarding punishment, the Court may take it into consideration accordingly.

11 (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."

12 From the Case Stated it would appear that the Respondent stood charged before the learned District Justice with a breach of regulation 15 of the Betting Duty Regulations 1934 committed on the 6th August 1982 and with a total of seventeen charges of breaches of Regulation 18 of the same Regulations alleged to have been committed on the 2nd, 3rd and 4th August 1982.

13 What the learned District Justice did in those circumstances was that he first convicted the Respondent of the offence contrary to Regulation 15 and then the Respondent having admitted his guilt in respect of all the other seventeen offences, took them into consideration and imposed a penalty of £800. In other words, the statutory mandatory penalty, without mitigation.

Submissions on the appeal

14 On behalf of the Appellant it was submitted:

15 1. That by its terms section 8 of the Act of 1951 could not apply to an excise offence by reason of the fact that the function of a Justice on such an offence was not to award punishment or to take any matter into consideration in awarding punishment but was merely to convict or acquit the person charged with such an excise offence, the penalty being automatic and mandatory. It was further contended that the power vested in the Justice to mitigate was not a power to vary or exercise a discretion with regard to the punishment, but only arose after the punishment had been imposed or incurred automatically. On this ground it was asserted that it is impossible to interpret section 8 as being applicable to excise offences.

16 Secondly, it was submitted on behalf of the Appellant that the provisions contained for penalty in section 25(2) of the Finance Act 1926and the provisions contained in section 78 of the 1827 Act with regardtomitigation were special provisions dealing with a particular and specific topic, namely, excise offences, and that on the ordinary rule of construction of statutes, should not be taken to be impliedly amended or repealed by a subsequent general provision such as section 8 of the Act of 1951.

17 On behalf of the Respondent it was firstly urged that a necessary corollary to the cannon of construction of statutes which ordains that penal sections or provisions should be strictly construed was that a provision such as section 8 of the Act of 1951 which was intended to alleviated the situation of persons on whom penalties were imposed should be liberally construed in favour of those persons. It was urged that having regard to that principle there was nothing contained in section 8 which could reasonably lead to an inference that the Legislature intended to except from it excise offences. It was further urged that so long as a Justice had a power of mitigation under section 78 of the 1827 Act then it was truly possible for him to take into consideration theadmission of guilt in other offences in awarding punishment and that he was awarding punishment in a manner similar to the exercise of a discretion by any judge in a criminal case where a maximum penalty is provided. Reliance was placed on behalf of the Respondent on the fact that the Legislature had seen fit, over the years, to exclude the application of the Probation of Offenders Act, statutory provisions which, it was submitted, were in the same category as...