DPP v RL

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

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Reece Lambert

Appellant

[2023] IECA 47

The President

McCarthy J.

Kennedy J.

[222/21]

THE COURT OF APPEAL

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

Introduction

1 . The appellant, a 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.

Arguments Raised on Appeal

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 this 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.

4 . 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.

5 . Upon the resumed hearing, the parties were in agreement that the Court was not constrained by reason of the fact that Mr. Lambert, 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.

6 . In the course of the appeal hearing, the appellant has indicated that while the language of legislation dealing with severity appeals and undue leniency reviews is similar, that PMcC did not deal with severity appeals. Instead, the appellant draws attention to the case of DPP v. DMcD [2020] IECA 149 which was a severity appeal brought by an appellant who had been sentenced by the Circuit Court as a juvenile, but who had reached his majority by the time of his appeal. The question of what constraints, if any, to which the Court was subject, was not the subject of argument or submissions. The issue was not considered by the Court, and at this stage, we do not regard it as a significant precedent. It was certainly not a case which, to use the words of Finlay CJ. in Finucane v. McMahon [1990] 1 IR 165, quoted by Hogan J. in ACC Loan Management v. Connolly [2017] IECA 119, was “reached after the most comprehensive and detailed consideration of all relevant factors.”

7 . At the oral hearing, counsel on behalf of the Director was very clear in asking the Court to depart from the earlier decision in PMcC and to take the view that it was wrongly decided and to decline to follow it. Thus, it is necessary to consider the PMcC case in greater detail.

8 . In PMcC, the statutory provision in issue was s. 2(3) of the Criminal Justice Act 1993, which provides:

“On such an application, the Court may either—

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the...