Manuela Lacatus v The Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Ms. Justice Hyland
• Judgment Date: 12 June 2023
• Neutral Citation: [2023] IEHC 328
• Court: High Court
• Docket Number: Record No. 2022/83JR

Between

Manuela Lacatus

Applicant

and

The Director of Public Prosecutions

Respondent

[2023] IEHC 328

Record No. 2022/83JR

THE HIGH COURT

JUDGMENT of Ms. Justice Hyland delivered on the 12 June 2023

Factual background

1 The applicant seeks an Order quashing a decision of Naas Circuit Court of 30 November 2021, affirming a sentence imposed by the District Court of 8 months imprisonment in respect of an offence contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (the “2001 Act”).

2 The matter came before me as a contested leave application on 24 April 2023. Given the nature of the case, I directed that the matter be dealt with as a telescoped hearing. Therefore, I must consider both whether the applicant is entitled to be granted leave on the grounds identified, as well as whether she is entitled to relief on any or all of those grounds. Given the very low bar applicable, I have decided to grant leave on the grounds identified.

3 There is a somewhat complicated history in relation to the stay placed on the decision of the District Court of 12 May 2021. When the Order of the District Court was affirmed in the Circuit Court, an application was made to place a stay on the Order of the Circuit Court pending the judicial review proceedings being determined. That was refused and the Court of Appeal upheld that refusal. However, a fresh stay was granted on 5 April 2022. For present purposes, the significance of all this is that the applicant has not yet served the sentence of imprisonment imposed upon her.

4 The facts of this case may be simply stated. On 12 May 2021 the applicant appeared before Naas District Court in respect of the following charge of theft:

“ that you the said accused/defendant, On 30/04/2021 at Lidl Sallins Naas Co. Kildare in said District Court Area of Naas Co. Kildare, did steal property to wit Groceries to the value of €223.90 the property of Lidl Commercial Organisation, Lidl, Sallins, Contrary to Section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001” (sic)

5 While in Lidl on 30 April 2021, the applicant had paid for certain items but concealed other items in a pram that were not paid for. The applicant had three previous convictions for theft and handling stolen property. The plea in mitigation made on behalf of the applicant was that she was a 23-year-old woman with 4 children who was at that time 5 months pregnant. The District Court Judge imposed a sentence of 8 months imprisonment and fixed recognisances in the event of an appeal.

6 The appeal came before Naas Circuit Court on 30 November 2021 and the applicant pleaded guilty. It was outlined to the Court that the items had been concealed in a pram, that they were recovered in a saleable condition and that the applicant had not come to Garda attention since the date of the offence. A plea in mitigation was made, indicating that the applicant had five children, having since given birth and confirming that applicant had been pregnant at the time of the offence. It was submitted that two of her children have hearing defects and reference was also made by counsel to the fact that the applicant's household had minimal funds and that the goods were taken, out of necessity, for her family. The trial judge affirmed the sentence of the District Court of 8 months and placed a 3 month stay on the Order based on the age of the applicant's baby at the time, who was 1 month old.

7 Given the nature of the grounds raised, it is necessary to set out in relevant part the ruling of the trial judge:

“Judge: Okay, well look, I want to make it clear as I possibly can that people who engage in this, I mean she had the previous history of two offences of theft, she goes into Lidl, there's no excuse whatsoever for it, she hides away property to the value of 223 euro and attempts to leave without paying for it. I absolutely think that people who continue to commit offences of petty theft, and I exclude from this people who are on the breadline or who are in really difficult circumstances but they ought to know that in front of me certainly they are going to face jail, so she is in one of those circumstances. I am satisfied that she just continued to commit these offences and she has a bad previous history, now she has pleaded guilty and she entitled to some mitigation for that. Judge Zaidan gave it to her, in fact he gave her a third off, I presume also he took into account and as I do that the goods were recovered but they're recovered because of the good work of Lidl and the fact that there's in place a good security system to stop people like her from stealing from them. But that all comes at a cost, it comes at a cost to Lidl and it comes at a cost to the general community that they have to take these measures to stop their goods being pilfered. Supermarkets like Lidl, Aldi, Supervalu, etc. etc. they all provide a huge social service as well as making profit for themselves, they all provide us with a great service and people like the defendant are parasites who go in and don't pay for their goods and try and nick stuff. Now, they don't come in front of me with any sympathy, I can guarantee you that much. So the only problem I have, and I'll say this to you Ms. Gillece is that she has a one month old baby…

Ms. Gillece: Yes Judge

8 Given the age of the baby, the trial judge affirmed the District Court Order of a term of imprisonment of eight months and stayed the warrant for three months.

Relief Sought

9 . The applicant sought an Order of certiorari quashing the Order of Naas Circuit Court (District Court Appeals) on 30 November 2021 affirming a sentence of eight months' imprisonment such sentence to take effect three months from the date of its imposition. The grounds identified at paragraph E of the Statement of Grounds are as follows:

• — That the Circuit Court Judge declined to consider the circumstances in respect of which a sentence of 8 months had been passed, in particular that the theft was of groceries, that they had been stolen by a young mother, that they had been recovered immediately and that she had modest previous convictions;

• — That the Judge did not follow the correct approach in deciding upon sentence, namely, engaging in a process of fixing a headline sentence to mark the gravity of the offence, then applying mitigation to reach a sentence appropriate to the applicant as the individual offender, and then consider the suspension of some or all of the sentence;

• — That the process of selecting an appropriate sentence on appeal must involve more than a mere consideration of whether a sentence imposed at first instance could be justifiable;

• — That a custodial sentence of 8 months on the facts is extreme and out of proportion to the gravity of the offence and the applicant's mitigating circumstances do not appear to have been reflected in the sentence imposed;

• — That the sentence is so far outside normal discretionary limits that it amounts to a fundamental error of law;

• — That the Judge appears to have applied a fixed policy of sentencing shoplifters;

• — That the trial judge described the applicant as part of a group that were “ parasites on society”.

10 Counsel for the applicant strongly urged upon me that, although no one ground of challenge might alone be sufficient, taken together they justified an Order of certiorari. That approach does not seem correct to me. If a ground is sufficient to warrant quashing the decision, it does not require the existence of other grounds so as to justify it. If on the other hand the ground is not sufficient to justify certiorari, the strength or otherwise of other grounds of challenge is irrelevant.

Statutory offence

11 Section 4 of the 2001 Act defines theft as follows:

“4.—(1) Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.

…

(5) In this section—

“appropriates”, in relation to property, means usurps or adversely interferes with the proprietary rights of the owner of the property;

“depriving” means temporarily or permanently depriving.

(6) A person guilty of theft is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.”

12 If the charge is considered a minor offence and thus suitable for disposition at District Court level, the maximum sentence is 12 months. However, as identified in subsection (6), on indictment the maximum sentence is 10 years.

Fixed Policy

13 The applicant argues that the trial judge adopted an impermissible fixed policy when sentencing the applicant. It is submitted this invalidates the decision of the Circuit Court Judge. It is clear from the case law cited by both parties that there is a jurisdiction to quash a sentence where a judge has impermissibly circumscribed the exercise of their discretion by adopting and applying a fixed policy. (See ( McGrane v Judge Coughlan unreported High Court, 30 June 2005), ( Dunne v Judge Coughlan unreported, High Court, 25 April 2005) and Pudliszewski v Judge Coughlan [2006] IEHC 304). The argument between the parties centres upon whether, in this case, the trial judge in fact impermissibly fettered his discretion. The transcript discloses that the trial judge observed in his ruling that:

“ people who continue to commit offences of petty theft, and I exclude from this people who are on the breadline or who are in really difficult circumstances, but they ought to know that in front of me certainly they're going to face jail. So, she is in one of those circumstances”

14 In my view, the trial judge is by these words identifying a category of persons i.e., those who continue to commit petty theft offences, who are certainly going to face jail. He confirms that the applicant is in that category of persons. He then...