Michael O'Brien v District Judge John Coughlan and Another

• Jurisdiction: Ireland
• Judgment Date: 10 November 2015
• Neutral Citation: [2015] IECA 245
• Date: 10 November 2015
• Court: Court of Appeal (Ireland)

[2015] IECA 245

THE COURT OF APPEAL

The President

Kelly J.

Peart J.

[No. 26 COA/2014]

Michael O'Brien v District Judge John Coughlan & Anor.

JUDICIAL REVIEW

BETWEEN

MICHAEL O'BRIEN

APPLICANT/APPELLANT

AND

DISTRICT JUDGE JOHN COUGHLAN AND DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Sentencing – Judicial review – Road traffic offences – Appellant seeking judicial review – Whether driving disqualification was unreasonable and contrary to law

Facts: The appellant, Mr O”Brien, before the first respondent, District Judge Coughlan, in the District Court at Naas in May 2013, pleaded guilty to two road traffic charges: use of a vehicle without insurance contrary to s. 56 of the Road Traffic Act 1961 and driving a vehicle while disqualified contrary to s. 38 of the 1961 Act. The judge sentenced him to a term of four months” imprisonment and disqualified him from driving for 40 years. The appellant brought judicial review proceedings before the High Court, submitting that: 1) the respondent judge failed to consider whether to make a community service order in respect of Mr O”Brien as an alternative to a custodial sentence and in failing to do so, he was in breach of the Criminal Justice (Community Service) (Amendment) Act 2011; 2) the respondent judge failed to conduct a proper enquiry into whether Mr O”Brien was entitled to legal aid; 3) the ban on driving for a period of 40 years was wholly unreasonable and contrary to law; 4) the offence of driving while disqualified did not exist in law and the conviction did not show jurisdiction because it recited an incorrect statutory basis for the purported offence and the charge, as preferred, was prejudicial insofar as it recited the previous conviction of the accused person. The High Court refused the reliefs sought in the application for judicial review. The appellant appealed from the judgment and order of the High Court to the Court of Appeal. The second respondent, the DPP, submitted that: (a) the respondent judge was not required to state reasons for imposing imprisonment rather than community service; (b) the respondent judge did not in fact refuse or deny legal aid to Mr. O”Brien; (c) an appeal was the appropriate course for Mr O”Brien to pursue.

Held by the President that the respondent judge was required to take into account the option of community service when deciding on sentence. However, the President noted that this did not mean that he had to spell out expressly that he had performed his statutory duty in that regard. The President held that legal aid was not refused and that there was nothing to stop the appellant from returning to the Court to seek confirmation of the grant of legal aid, if appropriate. The Court took the view that the 40-year disqualification was unjustifiable and ought to be struck down; it was outside the zone of what might be considered reasonable by any standard while also offending the underlying legal basis of the disqualification as determined and set out in Conroy v Attorney General [1965] IR 411. The President held that the disqualification order must fall. The President held that this did not mean that the whole conviction was erased, however, because it was an ancillary disqualification that was severable from the sentence which was imposed within jurisdiction. The Court was satisfied that there was no doubt about the crime that the District Court considered and neither was there any doubt about the nature of the crime for which Mr O”Brien was convicted.

The President held that the appeal be dismissed.

Appeal dismissed.

1 JUDGMENT of the Court delivered by the President on 10th November 2015

2 1. This is an appeal from the judgment and order of the High Court (Kearns P.) refusing the various reliefs that were sought in the application for judicial review brought by Mr. Michael O'Brien.

3 2. The case concerns proceedings in the District Court at Naas before the respondent judge on 9 ^th May 2013. On that occasion, the appellant, Mr. O'Brien, pleaded guilty to two road traffic charges. 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). Evidence was given that Mr. O'Brien had 14 previous convictions for road traffic offences, including two for driving while disqualified and five for driving without insurance. The judge sentenced him to a term of four months' imprisonment and disqualified him from driving for 40 years. It appears that the imprisonment and disqualification were imposed on the offence of driving while disqualified and the charge of driving without insurance was taken into consideration.

4 3. Mr. O'Brien brought judicial review proceedings and was granted leave on grounds that were subsequently extended by order of the High Court. The issues that were considered by the High Court and that arise on this appeal are as follows:-

5 (a) the respondent failed to consider whether to make a community service order in respect of Mr. O'Brien as an alternative to a custodial sentence. In thus failing, the judge was in breach of the Criminal Justice (Community Service) (Amendment) Act 2011;

6 (b) the respondent failed to conduct a proper enquiry into whether Mr. O'Brien was entitled to legal aid;

7 (c) the ban on driving for a period of 40 years is wholly unreasonable and contrary to law;

8 (d) the offence of driving while disqualified does not exist in law and the conviction does not show jurisdiction because it recites an incorrect statutory basis for the purported offence and the charge, as preferred, was prejudicial insofar as it recited the previous conviction of the accused person.

9 4. We shall now turn to consider these points in turn.

Community Service

10 5. Section 3 of the 2011 Act effects a significant change in the previous legislation in the 1983 Act. The section provides that where a Court is of opinion that the appropriate sentence for the offence committed by the offender would be imprisonment for a period of 12 months or less, the Court is required to consider making a community service order. Where the Court is of opinion that the appropriate sentence would, but for the Act, be one of imprisonment for more than 12 months, the Court may make a community service order. The Court has to be satisfied that the person is suitable for such an order before directing community service in lieu of imprisonment. The offender's consent is required before an order can be made (see sections 1 and 4 of the Principal Act (as amended)).

11 6. It was submitted on Mr. O'Brien's behalf that the respondent judge failed to address the suitability of Mr. O'Brien for a community service order, which was a mandatory obligation given that he imposed a sentence of four months' imprisonment.

12 7. Kearns P. held that the judge "was not required to expressly state reasons for not imposing community service where the same was not sought or consented to". Judges of the District Court are often required to consider the imposition of short custodial sentences and so the provision about community service was of particular relevance. It had to be presumed that District Judges were aware of their obligation to consider community service as an alternative. He did not consider that there was a need to state openly and in detail the reasons why community service was not suitable in every individual case. He held that it was an obvious inference in this case from the undisputed facts that the judge felt that a custodial sentence was necessary: "this is particularly the case when the issue of community service is never raised or consented to by a defendant's legal representatives". Moreover, the applicant had a remedy available to him by way of an appeal to the Circuit Court where his legal representatives could argue for a community service order.

13 8. The argument on Mr. O'Brien's behalf is that the respondent was under an obligation, not only to address himself to the question of community service in the particular case, but to express himself as having done so. He was under an obligation to say that he had in fact considered community service. He had to, at the very least, make some reference to community service. It was therefore not open to the learned President to infer that the judge had taken it into account. It was submitted that the statutory obligation goes further and the Court must obtain a report in respect of the suitability of the offender to be made subject to a community service order. In my view, one can reject the latter submission at once. It is clearly the intent of the section and is so stated that the report is to be obtained in circumstances where the judge considers that the offender is a person who may be appropriate for a community service order. If the judge is not of that view, there is no requirement, nor could there be, on the judge to direct a report. The judge's consideration that the offender may be appropriate is the first step. It would make no sense to require the preparation of a probation report in every case when the judge was not satisfied that it was appropriate to consider such alternative to a prison sentence.

14 9. The appellant submitted that it has to be inferred that the judge did not consider community service because of his failure to refer to it and that amounts to a breach of the statutory requirement and accordingly rendered the sentence unlawful.

15 10. The Director submitted that the judge was not obliged to state expressly that he had considered the provisions of s. 3(1) of the Act (as amended). Neither was he required to state reasons for imposing imprisonment rather than community service....