DPP v RL

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Birmingham P.
• Judgment Date: 02 March 2023
• Neutral Citation: [2023] IECA 47
• Docket Number: [222/21]

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

and

RL

Appellant

[2023] IECA 47

The President

McCarthy J.

Kennedy J.

[222/21]

THE COURT OF APPEAL

Sentencing – Severity of sentence – Criminal Procedure Act 1993 s. 3(2) – Appellant seeking to appeal against sentence – Whether there were any constraints applicable by reason of the appellant’s age

Facts: The appellant appealed to the Court of Appeal against the severity of a sentence imposed on him in the Circuit Court. The sentence the subject of appeal was one of three years and two months detention that was imposed on 8th November 2021. When the severity appeal came before the Court of Appeal, an issue was raised by members of the Court as to whether there were any constraints applicable by reason of the appellant’s age. The question was raised in circumstances where the appellant’s date of birth was 18th November 2003, thus, he was 17 years of age at the date of sentence but was 18 years of age when his appeal was listed for hearing. Members of the Court were prompted to raise the question of whether there was any significance to be attached to the fact that the appellant had attained his majority in the period between imposition of sentence and the hearing of the appeal. In raising the issue, members of the Court had in mind the decision of the Court in the case of DPP v PMcC [2018] IECA 309, where the Court was concerned with an application to review a sentence of detention as unduly lenient and where difficulties were perceived as arising by reason of the fact the respondent to the application to review was sentenced as a juvenile to a term of detention, but came before the Court on foot of the application to review as an adult. Having canvassed the issue, members of the Court put the matter back and afforded both sides an opportunity to make submissions. On the resumed hearing, counsel on behalf of the appellant made clear that he did not wish the Court to embark on a consideration as to whether the sentence imposed was appropriate or unduly severe until the question of the extent of the Court’s jurisdiction had been determined. Upon the resumed hearing, the parties were in agreement that the Court was not constrained by reason of the fact that the appellant, post-sentence, had attained his majority. Both sides were in agreement that if the Court felt that the sentence imposed in the Circuit Court was too severe, it could intervene by quashing the sentence and imposing in lieu an appropriate sentence which could be a sentence of imprisonment of appropriate duration.

Held by the Court that the language of s. 3(2) of the Criminal Procedure Act 1993 represented a considerable obstacle to the shared desire of the parties. The Court held that, if minded to intervene in relation to sentence, it would not be at large, but rather, would be confined to imposing a sentence or order which could have been imposed on the convicted person for the offence at the court of trial. The Court held that a sentence of imprisonment could not have been imposed in the Circuit Criminal Court on 8th November 2021, because at that time, the appellant was a juvenile and there was a clear and unequivocal prohibition on any Court passing a sentence of imprisonment on a child or committing a child to prison. The Court held that if the obstacle was to be overcome, that could only be achieved by adding or writing in words that were not there. The Court concluded that what was being urged on it was that it should rewrite the legislation. It seemed to the Court that what both sides contended for was simply a step too far. It seemed to the Court that the choice of what order the Court could or should make was a binary one: the Court could quash the sentence imposed in the court below and make no further order; or the Court could decline to quash the sentence and reject the appeal. The Court believed the language of the statute was clear and compelled it to follow that course.

The Court proposed that, having given the parties an opportunity to consider the ruling, it would embark on a consideration of the merits of the appeal which would involve a determination of whether the sentence imposed on 8th November 2021 should be allowed stand or should be quashed.

Judgment unapproved.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of the Court delivered on the 2 ^nd day of March 2023 by Birmingham P.

Introduction

1 . The appellant, an 19-year-old man, who is at present detained in Wheatfield Prison, has appealed to this Court against the severity of a sentence imposed on him in the Circuit Court. The sentence the subject of appeal is one of three years and two months detention that was imposed on 8 ^th November 2021. When the severity appeal came before this Court, an issue was raised by members of the Court as to whether there were any constraints applicable by reason of the appellant's age. This question was raised in circumstances where the appellant's date of birth is 18 ^th November 2003, thus, he was 17 years of age at the date of sentence but was 18 years of age when his appeal was listed for hearing. Members of the Court were prompted to raise the question of whether there was any significance to be attached to the fact that the appellant had attained his majority in the period between imposition of sentence and the hearing of the appeal, in circumstances where members of the Court had been dealing with what, on one view, might be seen as similar issues, though in a different statutory context in the case of DPP v. Cian O'Leary (Record No. 89 of 2022). By the time this case was first listed, the O'Leary case had been before the Court and judgment had been reserved.

2 . The issue was raised by members of the Court in circumstances where they were aware that s. 3(2) of the Criminal Procedure Act 1993, the section that governs appeals against severity of sentence, provides:

“On the hearing of an appeal against sentence for an offence the Court may quash the sentence and in place of it impose such sentence or make such order as it considers appropriate, being a sentence or order which could have been imposed on the convicted person for the offence at the court of trial.” [our emphasis added]

3 . In raising the issue, members of the Court also had in mind the decision of...