McDonagh v Browne

• Jurisdiction: Ireland
• Judge: JUSTICE T.C. SMYTH
• Judgment Date: 10 June 2004
• Neutral Citation: [2004] IEHC 210
• Docket Number: [2004 No. 68 J.R.]
• Court: High Court
• Date: 10 June 2004

McDONAGH v. DISTRICT JUDGE BROWNE & DPP

DUBLIN

(JUDICIAL REVIEW)

BETWEEN:

CHRISTOPHER McDONAGH

Applicant

-and-

DISTRICT JUDGE GEOFFREY BROWNE and THE DIRECTOR OFPUBLIC PROSECUTION

Respondents

[2004] IEHC 210

Record No. 68JR/2004

THE HIGH COURT

Synopsis:

- [2004] 3 IR 506

Facts: The applicant was serving an eighteen-month sentence when he came before the District Court on foot of a number of summonses. The first named respondent imposed a total of twenty-three months imprisonment for the offences specified in the summonses to run consecutively to the sentence the applicant was serving at that time. The unchallenged evidence on behalf of the respondent was that the applicant committed the offences while he was on bail. The applicant submitted that the first named respondent was not entitled to impose such a term of imprisonment and he relied on section 5 of the 1951 Act in support of that proposition.

Held by Symth J in dismissing the application:

1. That there was no onus on the respondent to prove the offences were committed while the applicant was on bail. If the respondent's sworn position was questionable, a replying affidavit should have been filed on behalf of the applicant.

2. That section 11(1) of the 1984 Act prohibited the imposition of consecutive sentences where the sum of those sentences exceeded two years. In the present case the sum of the consecutive sentences amounted to twenty-three months and accordingly the first named respondent did not act outside jurisdiction.

Reporter : L.O'S.

Citations:

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL JUSTICE ACT 1951 S5

CRIMINAL JUSTICE ACT 1984 S12

WHITE, STATE V MARTIN 111 ILTR 21

PAYNE V CLIFFORD 1985 ILRM 70 1984/8/2676

KEATING, STATE V O'HUADHAIGH UNREP FINLAY 11.5.1984 1984 /7/2350

CRIMINAL JUSTICE ACT 1984 S11

BAIL ACT 1997 S10

CRIMINAL JUSTICE ACT 1984 S11(1)

SHEEHAN V REILLY 1993 ILRM 427

1 APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTHDELIVERED ON THURSDAY. 10TH JUNE 2004

MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT, AS FOLLOWS, ONTHURSDAY, 10TH JUNE 2004

MR. JUSTICE SMYTH: The net question which arises in this case is whether a Judgeof

2 the District Court is entitled to impose sentences amounting to twenty-three months imprisonment upon a defendant who is already serving, inter alia, a sentence of eighteen months in respect of an unrelated matter.

THE FACTS

3 On 24th November 2003, the Applicant came before the District Court in Gal way on foot of a number of summonses for road traffic offences and an assault charge. At that time, he was serving an eighteen-month sentence imposed by the District Court on 3rd July 2002, which was affirmed by the Circuit Court on appeal on 12th November 2002.

4 The Applicant pleaded guilty to the Road Traffic Act offences committed on 20th May 2003, but prior to dealing with these summary matters the first-named Respondent ascertained his entitlement to retain jurisdiction in respect of an assault contrary to Section 3 of the Non-Fatal Offences Against the Person Act 1997 on 11th November 2001. As the assault charge was being contested, it was 'put to

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6 second call'. The Judge then proceeded with the road traffic offences and having heard the evidence he imposed a total of eleven months imprisonment for those offences, to run consecutively to the sentence the Applicant was serving at the time. Later in the day the Applicant was convicted on the assault charge and was sentenced to twelve months imprisonment. The first-named Respondent confirmed that he had sentenced the Applicant to twenty-three months imprisonment on that day, to run consecutively to the sentence being served. The affidavit sworn by Inspector Anthony O'Domhnaill, on behalf of the Respondents, states in paragraph (3) as follows:-

"I say that all of the offences dealt with by the first-named Respondent on 24th November 2003, and in respect of which the Applicant was sentenced on that day, were committed whilst the Applicant was onbail."

7 This circumstance, viz that the offences were committed by the Applicant while he was on bail, is also expressly referred to and relied upon in the Statement of Opposition. Notwithstanding the filing in court of an affidavit corrective as to the length of the term being served in prison prior to 24th November 2003, the fact sworn to by Inspector O'Domhnaill is not challenged or contradicted. Accordingly, I accept as a fact and find as a fact the matter as deposed to by Inspector O'Domhnaill.

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THE LAW AND LEGAL SUBMISSIONS

9 The Applicant submitted that the relevant law was to be found in Section 5 of the Criminal Justice Act 1951(No. 2 of 1951), which provides for the imposition of consecutive terms of imprisonment by the District Court in the following terms:-

"Where a sentence of imprisonment is passed on any person by the District Court, the Court may order that the sentence shall commence at the expiration of any other term of imprisonment to which that person has been previously sentenced, so however that where two or more sentences passed by the District Court are ordered to run consecutively the aggregate term of imprisonment shall not exceed twelvemonths."

10 An increase of the aggregate term of imprisonment in certain cases was provided for in the following terms by Section 12 of the Criminal Justice Act 1984:-

"12(1) Section 5 of the Criminal Justice Act 1951(which provides that, where two or more sentences passed by the District Court are ordered to run consecutively, the aggregate term of imprisonment shall not exceed twelve months) is hereby amended by the substitution, for "twelve months", of "twoyears". In that section "imprisonment" shall include detention in Saint Patrick's Institution."

11 This statutory amendment would appear to have been a legislative reaction to decided cases dealing with Section 5 of the Act of 1951, and in particular The State (White) -v- Circuit Judge FrankMartin (111) ILTR [1977]...