DPP v Jagoe
| Jurisdiction | Ireland |
| Judge | Macken, J. |
| Judgment Date | 13 October 2008 |
| Neutral Citation | [2008] IECCA 128 |
| Court | Court of Criminal Appeal |
| Docket Number | No CCA 87CJA/08 |
| Date | 13 October 2008 |
AND IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
No CCA 87CJA/08
THE COURT OF CRIMINAL APPEAL
Criminal law - Assault - Compensation - Unduly lenient sentence - Probation of Offenders Act, 1907 - Whether the application of section 1(2) of the Probation Act by the sentencing judge in relation to an assault was unduly lenient.
Facts: The applicant sought to set aside, on the basis that it was unduly lenient, the sentence in the present case, whereby the sentencing judge applied section 1(2) of the Probation of Offenders Act, 1907 in relation to an assault charge. The applicant submitted that the learned sentencing judge paid inadequate regard to the gravity of the offence and further that he had undue regard to the existence of an offer of compensation on the part of the respondent, taking it into account with undue weight. It was also claimed that there was no or insufficient evidence before the court of the good character of the accused. Finally, the applicant argued that the learned sentencing judge failed to designate clearly and explicitly which of the provisions of s. 1(2) he relied on.
Held by the Court of Criminal Appeal in an ex tempore judgment of Macken J (Budd, McCarthy JJ) in refusing the application: That having regard to the rarity with which this section arises and having regard to the fact that the principles to be applied to the section were not brought to the attention of the sentencing judge, it would not have been appropriate to make any criticism of the sentencing judge on the basis that he did not explicitly state which of the three alternatives contained in section 1(2) he was opting for. It was clear from the language used by the sentencing judge that he knew he was dealing with and accepted that he was dealing with an offence of some considerable gravity. There was adequate evidence upon which the sentencing judge could have found that the accused was of such character that he fell within the provisions of s. 1(2) and of particular relevance was the fact that he presented himself to the Gardai following the publication of CCTV footage and was very cooperative and remorseful. Although the sentencing judge gave the offer of compensation considerable weight, he did not give it such weight as to lead to a conclusion that the exercise of the discretion which he had was in any way perverse or unjustified or in any other manner exercised so as to set aside the decision on sentencing which he made.
Reporter: L.O’S.
Judgment of the Court (ex tempore) delivered on the 13th day of October 2008 by Macken, J.
This is a matter in which the court is in a position to deliver its decision immediately. This is an application under s.2 of the Criminal Justice Act 1993 brought on behalf of the Director of Public Prosecutions who seeks to set aside the sentence in the present case on the grounds that it was unduly lenient. It is not necessary to go into the jurisprudence in relation to that matter, save to say of course that we are not looking at whether or not judgment was lenient, because that is not the criterion to be applied but rather whether it was unduly lenient. It arises out of the application by the learned sentencing judgment of the provisions of what is commonly called the Probation Act, that is, the Probation of Offenders Act 1907 and in particular s.1(2) which states that:
“Where any person has been convicted on indictment of any offence punishable with imprisonment and the court is of the opinion that having regard to the character, antecedents age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or anything other than a nominal punishment, or that it is expedient to release the offender on probation, the court may in view of imposing a sentence of imprisonment make an order discharging the offender conditionally on his entering into recognisance’s etc.”
That is the nub of the difficulty that arises in the present circumstances. It has to be accepted that in circumstances of an assault of the nature that occurred in the present case, it must be very rare indeed that the provisions of the Probations of Offenders Act would be applied but that does not mean that it may not be applied by the judge since it may apply in all circumstances or to all offences that are punishable with imprisonment.
The two main arguments made on behalf of the Director are firstly, to the effect that the learned sentencing judge had an inadequate regard to the gravity of the offence or what might be called the seriousness of the offence but “the gravity of the offence”, and it was certainly quite a grave offence. Secondly, that he had an undue regard to the existence of an offer of compensation on the part of the accused, taking it into account with undue weight according to Senior Counsel, Ms. Farrelly on behalf of the Director. In addition, there is a claim on behalf of the Director that there was no or insufficient evidence before the court of the good character of the accused.
Finally it is argued that the learned sentencing judge failed to designate clearly and explicitly which of the provisions of s.1(2) he relied on. On the part of the respondent to the application, it is argued that the judge fairly and squarely came down in favour of applying the first of the three possible provisions that can be applied under s.1(2) namely, the question of the character of the respondent accused. Secondly, that the learned sentencing judge was fully entitled to do this and that in exercising the discretion which he did to do so, he did not make any error in law and certainly no error in principle.
Conclusion:
The conclusion which the court comes to in relation to the matter recognising that this is a very rare event that occurs which is clear from the absence of any substantial amount of case law on the application of the Section, is nevertheless that the judge was entitled to come to the view which he did. The court starts by dealing with the last of the issues raised by the Director, namely that the learned sentencing judge had failed expressly or explicitly to designate which of the categories 1, 2 and 3 of s.1(2) he was relying on that argument is based on a fairly old decision inKilroy v Brennan in which it was stated that the sentencing judge when applying the provisions of the Probation of Offenders Act 1907 should explicitly state which of the categories the judge was relying on. That is what is sometimes called a “reasoning” argument and it is an argument that can be made in appropriate circumstances. But the court takes the view that having regard to the rarity with which this Section arises and having regard to the fact that the provisions of the Section as enunciated in Kilroy v Brennan or the principles to be applied to the Section were not brought to the attention of the sentencing judge, it would not be appropriate to make any criticism of the
sentencing judge on the basis that he did not explicitly state which of the three alternatives he was opting for. That deals with that aspect of the matter.
In relation to the question of failing to have sufficient regard to the gravity of the offence it is the court’s view that the sentencing judge is obliged to take into account the gravity of the offence. In the present case, he is not obliged as he is not specifically compelled to invoke the wording “and I have regard to the gravity of the offence”. Having regard to the gravity of the offence can be found in the actual wording used in the course of the sentence or indeed even in the course of the hearing part of the sentence and in the course of the cross-examination of Garda Greenwood the judge intervened to pass comment that all of this had occurred in a night club and the judge said “yes Cubans and he had a glass in his hand” and he was corrected by the garda who said “a bottle” and the judge said “a bottle and he struck yer man in the face with the bottle”. Then a...
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DPP v O'Mahony
...judge went too far in applying the Probation of Offenders Act, 1907. In reply, the respondent relies on The People (DPP) v. Jagoe [2008] IECCA 128 IN WHICH THE Court considered an undue leniency appeal where the sentencing judge had applied the Probation Offenders Act 1907. The Court stated......