Michael O'Brien v Disrict Judge John Coughlan and Another
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 19 September 2014 |
| Neutral Citation | [2014] IEHC 425 |
| Court | High Court |
| Date | 19 September 2014 |
[2014] IEHC 425
THE HIGH COURT
AND
AND
ROAD TRAFFIC ACT 1961 S56
ROAD TRAFFIC ACT 1961 S38
CRIMINAL JUSTICE (COMMUNITY SERVICE) (AMDT) ACT 2011 S3
CRIMINAL JUSTICE (COMMUNITY SERVICE) ACT 1983 S4
CRIMINAL JUSTICE (COMMUNITY SERVICE) ACT 1983 S3(1B)
CRIMINAL JUSTICE (COMMUNITY SERVICE) ACT 1983 S3(1)(A)
RAWSON v MIN FOR DEFENCE UNREP SUPREME 1.5.2012 2012/40/11874 2012 IESC 26
GARDA KELLY v CMSR OF AN GARDA SIOCHANA UNREP SUPREME 5.11.2013 2013/21/6183 2013 IESC 47
HOLLAND, STATE v KENNEDY 1977 IR 193
CHILDREN ACT 1908
CRIMINAL JUSTICE (COMMUNITY SERVICE) ACT 1983 S3(1)
CRIMES (SENTENCING PROCEDURE) ACT 1999 S5(2) (NSW)
LYNDON v DISTRICT JUDGE COLLINS UNREP CHARLETON 22.1.2007 2009/33/8216 2007 IEHC 487
KENNY v DISTRICT JUDGE COUGHLAN & DPP UNREP SUPREME 5.3.2014 2014 IESC 15
CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2
CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S9
HEALY, STATE v DONOGHUE & ORS 1976 IR 325
WHELAN v DISTRICT COURT JUDGE FITZPATRICK & DPP 2008 2 IR 678 2007/60/12790 2007 IEHC 213
CONROY v AG & KEAVENEY 1965 IR 411
R v ST ALBANS CROWN COURT, EX PARTE CINNAMOND 1981 QB 480 1981 2 WLR 681 1981 1 AER 802
R v NORTH 1971 RTR 366
KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202
O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237
CUNNINGHAM, STATE v DISTRICT JUSTICE O FLOINN & ANOR 1960 IR 198 1961 95 ILTR 24
ROAD TRAFFIC ACT 1961 S38(1)
ROAD TRAFFIC ACT 1961 S38(5)
ROAD TRAFFIC ACT 2006 S12
Road traffic offences – Order of certiorari – Legal aid – Applicant seeking an order of certiorari quashing the order of conviction and sentence – Whether respondent”s obligation to consider imposing community service amounts to an obligation to expressly state the reasons for not doing so
Facts: The applicant, Mr O”Brien, pleaded guilty to two offences under the Road Traffic Act 1961 in 2013. Prior to this, the applicant had amassed 14 previous convictions under the Road Traffic Acts. The respondent imposed a four month custodial sentence and a 40 year driving ban. The applicant sought an order of certiorari from the High Court quashing the order of conviction and sentence, an order quashing the driving disqualification decision and an order quashing the decision in respect of the application for legal aid. The applicant submitted that the decision of the first respondent, District Judge Coughlan, to sentence him to imprisonment was in breach of statute and his constitutional right to a fair trial and just procedures as the judge failed to consider whether to make a community service order in respect of the applicant as an alternative, referring to the Criminal Justice (Community Service) (Amendment) Act 2011 s. 3(1) and Rawson v the Minister for Defence [2012] IESC 26. The second respondent, DPP, submitted that while there is an obligation to consider the imposition of community service, this does not amount to an obligation to expressly state the reasons for not doing so, referring to Lyndon v Judge Collins [2007] IEHC 487. The DPP also submitted that the failure of the applicant to draw the provisions of the 2011 Act to the attention of the first respondent disentitles him to the relief sought. The applicant submitted that the respondent failed to conduct a proper inquiry into whether the applicant was entitled to legal aid and that his order amounted to a de facto refusal. The respondent submitted that a denial of legal aid did not occur, rather the first respondent deferred a decision pending the presentation of documents that would enable him to make an informed decision. The applicant submitted that the 40 year ban is excessive, disproportionate, unreasonable, and constitutes an error of law. The DPP submitted that the matter is more appropriately dealt with by way of appeal. The applicant submitted that he was convicted in the District Court of an offence that is not known to law and that the order convicting and sentencing him and disqualifying him from driving contains an error on the face of the record and does not show jurisdiction as it recites an incorrect statutory basis for the purported offence and applicable penalties, relying upon State (Cunningham) v O”Floinn & Ors [1960] IR 198. The DPP submitted that the applicant cannot claim to be in any way prejudiced by the manner in which the order of conviction is phrased.
Held by Kearns P that, having considered the obligation under s. 3(1), he was satisfied that the first respondent was not required to expressly state reasons for not imposing community service where the same was not sought or consented to; the clear legislative intention behind the provision was to reduce the number of short-term custodial sentences imposed and it therefore places an onus on all judges to consider community service as an alternative. Kearns P was satisfied that the District Judge considered all of the sentencing options available to him and refused certiorari on this basis. Kearns P held that the applicant has a remedy by way of appeal to the Circuit Court where he can argue for a community service order. Kearns P held that there was nothing which prevented the applicant from mentioning the matter of legal aid before the District Court after the order of conviction was made and after the relevant documentation had been obtained; the applicant had the benefit of legal advice and representation. Therefore certiorari was refused on this ground. Kearns P accepted that a challenge to the duration of the disqualification is a matter to be dealt with on appeal and accepted the submission of the second respondent in relation to the order of conviction as there was no doubt surrounding the offence of which the applicant was convicted.
Kearns P held that all the reliefs sought be refused.
Application refused.
JUDGMENT of Kearns P. delivered on 19th day of September, 2014
On the 9 th May, 2013 at a sitting of Naas District Court before District Judge John Coughlan ('the first respondent') the applicant pleaded guilty to two offences contrary to the Road Traffic Acts. The orders of conviction record the offences as use of a vehicle without insurance contrary to s.56 of the Road Traffic Act 1961, as amended and "driving a vehicle while disqualified" contrary to s.38 of the Road Traffic Act, 1961, as amended. Prior to the two convictions recorded against the applicant on 9 May 2013, the applicant had amassed a total of 14 previous convictions under the Road Traffic Acts, including two for driving while disqualified and five for driving while uninsured. Having expressed his dissatisfaction with the applicant's record the respondent imposed a four month custodial sentence as well as a 40 year driving ban.
The applicant seeks an order of certiorari quashing the order of conviction and sentence; an order quashing the decision of the respondent to disqualify the applicant from driving for 40 years; and an order quashing the decision of the respondent in respect of the application for legal aid.
It is submitted on behalf of the applicant that the decision of the first respondent to sentence the applicant to four months imprisonment was in breach of statute and the applicant's constitutional right to a fair trial and just procedures, as the first respondent failed to consider whether to make a community service order in respect of the applicant as an alternative to a custodial sentence.
The Criminal Justice (Community Service) (Amendment) Act 2011 ('the 2011 Act') amends the Criminal Justice (Community Service) Act 1983. Section 3 of the 2011 Act provides as follows-
a "(a) by the substitution of the following subsection for subsection (1)-
(1) (a) Where a court, by or before which an offender stands convicted, is of opinion that the appropriate sentence in respect of the offence of which the offender is convicted would, but for this Act, be one of imprisonment for a period of 12 months or less, the court shall, as an alternative to that sentence, consider whether to make an order (in this Act referred to as a 'community service order') in respect of the offender and the court may, if satisfied, in relation to the offender, that the provisions of section 4 have been complied with, make a community service order in accordance with this section.
(b) Where a court, by or before which an offender stands convicted, is of opinion that the appropriate sentence in respect of the offence of which the offender is convicted would, but for this Act, be one of imprisonment for a period of more than 12 months and, it is satisfied, in relation to the offender, that the provisions of section 4 have been complied with, the court may make a community service order in accordance with this section.
(b) by the insertion of the following subsections after subsection (1A) (inserted by section 18 of the Fines Act 2010):
"(1B) Where in relation to an offender, the court considers that the offender is a person in respect of whom it may be appropriate to make a community service order, it shall request the Probation Service to prepare a report (in this Act referred to as an 'assessment report') in respect of the offender…"
a …(c) by the insertion of the following subsection after subsection (2):
"(2A) Nothing in subsection (1) shall be construed as affecting any power of the court under any rule of law or by or under any enactment to make such orders as the court sees fit providing for an alternative to a sentence of imprisonment in respect of the offender."
Section 4 of the Principal Act was amended as...
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