DPP v MS

• Jurisdiction: Ireland
• Judgment Date: 01 February 2000
• Date: 01 February 2000
• Docket Number: [C.C.A. No. 41 of 1997]
• Court: Court of Criminal Appeal

The People (Director of Public Prosecutions) v. M.S.

The People (Director of Public Prosecutions)

and

M.S

[C.C.A. No. 41 of 1997]

Court of Criminal Appeal

Criminal law - Sentencing - Rape - Application to suspend remainder of sentence - Elements of sentencing regarding sexual offences - Effect of complainant's opinion.

Courts - Court of Criminal Appeal - Jurisdiction - Appeal - Sentence - Whether supervised release appropriate - Whether court had jurisdiction to consider up-to-date reports not before trial judge - Whether court had jurisdiction to suspend sentence subject to programme of supervision - Courts (Supplemental Provisions) Act, 1961 (No. 39), s. 12.

Section 12 of the Courts (Supplemental Provisions) Act, 1961 provides,inter alia:-

"(1) The Court of Criminal Appeal shall be a superior court of record and shall, for the purposes of this Act and subject to the enactments applied by section 48 of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it."

Section 12 further provides that the Court shall have all jurisdiction vested in the previous Court of Criminal Appeal by virtue of certain specified certain enactments, including the Courts of Justice Act, 1924.

The applicant pleaded guilty to rape in the Central Criminal Court. It was accepted by the trial judge that had the applicant not pleaded guilty he may have been freed due to the complainant's refusal to give evidence. In a victim impact report, the complainant stated that she did not wish to see people going to prison for a long time. The trial judge imposed a sentence of six years imprisonment.

The applicant applied to the Court of Criminal Appeal for leave to appeal the sentence. The court was asked to suspend on terms the remainder of the sentence, subject to a release programme. At a previous hearing, the Court of Criminal Appeal ordered up-to-date reports concerning the applicant, including reports from the probation and welfare service at the institution wherein the applicant was detained. The applicant had attended the sex offender programme in the prison and had availed of therapeutic programmes. An updated victim impact report was also before the court, which was not before the Central Criminal Court. This showed the complainant favourable to the applicant's release.

Counsel for the Director of Public Prosecutions objected on the grounds that the court had no jurisdiction to make the order sought; that in the absence of a review of sentence by the Central Criminal Court, the applicant ought to seek a remedy through other procedures and that an appeal was not appropriate in this instance as there was no error of principle alleged. It was further contended that the Court of Criminal Appeal may only consider what was before the Central Criminal Court to see if the trial judge erred in principle, and that the court ought not to consider new facts as this would enable an appeal to be a review of sentence in light of current facts, which could amount to a second hearing.

Held by the Court of Criminal Appeal (Denham, Geoghegan and McGuinness JJ.), in allowing the application for leave to appeal and treating the hearing of the application as the hearing of the appeal, and in adjourning the application as regards the suspension of the sentence, 1, that, the fundamental principle underlying the jurisdiction of the Court of Criminal Appeal, was that it had the power and jurisdiction to do justice in the case before it.

2. That sentencing involved aspects of retribution, deterrence, protection of society, reparation and rehabilitation. Where a sentence incorporated elements of retribution only, it might run its course and not be varied. In cases relating to sexual offences, there were important aspects relating to the protection of society and rehabilitation of the defendant. The court accepted the proposition that supervised release after treatment benefited the community.

3. That the court had jurisdiction to suspend the latter part of a sentence subject to conditions set out in a programme of release whereby the applicant was under supervision. That was especially so where the release would benefit both the rehabilitating applicant and also benefit society, which would not occur where release came at the end of a sentence without any supervision.

4. That the court had jurisdiction to consider up-to-date reports on the applicant. In its analysis, the court must consider the impact on the victim. The fact that the complainant did not object to the sentence being reduced was not determinant of the court's decision, but was an important factor in the circumstances of the case.

Case mentioned in this report:-

O'Brien v. Governor of Limerick Prison [1997] 2 I.L.R.M. 349.

Criminal appeal.

The facts are summarised in the headnote and are fully set out in the judgment of the Court of Criminal Appeal, infra.

On the 21st March, 1997, the applicant was sentenced to six years imprisonment by the Central Criminal Court (Carney J.).

By notice of appeal filed on the 2nd day of April, 1997, the applicant sought leave to appeal against the sentence.

The application was heard by the Court of Criminal Appeal (Denham, Geoghegan and McGuinness JJ.) on the 11th October, 1999.

Cur. adv. vult.

In accordance with the provisions of s. 28 of the Courts of Justice Act, 1924, the judgment of the Court was delivered by one member.

Denham J. 1st February, 2000

This is an application for leave to appeal on behalf of the applicant from the sentence imposed on the 21st March, 1997, by the Central Criminal Court. The applicant was before that court on an indictment which stated:

Count No. 1 Statement of Offence Rape, contrary to s. 2 of the Criminal Law (Rape) Act, 1981, as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act, 1990. Particulars of Offence M.S., a male person, on the 11th May, 1996, at ______ in the County of __________, had sexual intercourse with A.M., a woman, who did not consent to it, and at the time knew that A.M...