Mooney vs DPP

JurisdictionIreland
JudgeMr Justice Garrett Simons
Judgment Date23 August 2019
Neutral Citation[2019] IEHC 625
CourtHigh Court
Docket Number2018 No. 1067 J.R.
Date23 August 2019

[2019] IEHC 625

THE HIGH COURT

JUDICIAL REVIEW

Garrett Simons

2018 No. 1067 J.R.

BETWEEN
MARK MOONEY
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Judicial review – Sentencing – Residence restrictions – Applicant seeking judicial review – Whether judicial review was the appropriate remedy

Facts: The applicant, Mr Mooney, had been convicted of an offence of harassment pursuant to s. 10 of the Non-Fatal Offences against the Person Act 1997. The District Court imposed a custodial sentence of nine months, but made an order suspending seven months thereof on condition, inter alia, that the applicant was not to reside within a distance of eight kilometres of the injured party for a period of three years. The applicant had declined to enter into the recognisance necessary to avail of the suspended sentence. The District Court had also purported to make a parallel order pursuant to s. 10(3) of the 1997 Act stipulating that the applicant was not to reside within a distance of eight kilometres of the injured party. This restriction was, seemingly, intended to apply for the remainder of the applicant’s life. The applicant submitted that the practical effect of this restriction was to exclude him from residing within the town in which he had always lived. The applicant submitted that the orders of the District Court were unreasonable and disproportionate in their effect upon his constitutional rights. It was further submitted that the orders were made in excess of jurisdiction, and, accordingly, that an application for judicial review was a more appropriate remedy than an appeal to the Circuit Court. On behalf of the respondent, the Director of Public Prosecutions, it was submitted that these matters were all better dealt with by way of appeal to the Circuit Court. In particular, it was submitted that the Circuit Court would have a wider jurisdiction to assess all relevant matters than the High Court would have through the narrow prism of judicial review proceedings

Held by the High Court that this was one of those exceptional cases where judicial review was the more appropriate remedy. The Court held that the District Court orders were made in excess of its statutory jurisdiction under both s. 10 of the 1997 Act and s. 99 of the Criminal Justice Act 2006. The Court held that the residence restriction was disproportionate in that it involved an unjustified and excessive interference with the applicant’s right to liberty and/or his right to free movement within the State.

The Court proposed making an order setting aside the sentence imposed by the District Court in its entirety. The Court would hear counsel as to whether the sentence imposed could be severed from the conviction, and whether the matter should be remitted to the District Court.

Order granted.

JUDGMENT of Mr Justice Garrett Simons delivered on 23 August 2019.
Summary
1

These judicial review proceedings raise issues as to the jurisdiction of a sentencing judge to impose restrictions upon the location at which a person convicted of a criminal offence may lawfully reside. The Applicant has been convicted of an offence of harassment pursuant to section 10 of the Non-Fatal Offences against the Person Act 1997. The District Court imposed a custodial sentence of nine months, but made an order suspending seven months thereof on condition inter alia that the Applicant is not to reside within a distance of eight kilometres of the injured party for a period of three years. The Applicant has declined to enter into the recognisance necessary to avail of the suspended sentence.

2

The District Court has also purported to make a parallel order pursuant to section 10(3) of the Non-Fatal Offences against the Person Act 1997 stipulating that the Applicant is not to reside within a distance of eight kilometres of the injured party. This restriction is, seemingly, intended to apply for the remainder of the Applicant's life. The Applicant submits that the practical effect of this restriction is to exclude him from residing within the town in which he has always lived.

3

The Applicant submits that the orders of the District Court are unreasonable and disproportionate in their effect upon his constitutional rights. It is further submitted that the orders were made in excess of jurisdiction, and, accordingly, that an application for judicial review is a more appropriate remedy than an appeal to the Circuit Court.

4

On behalf of the Director of Public Prosecutions, it is submitted that these matters are all better dealt with by way of appeal to the Circuit Court. In particular, it is submitted that the Circuit Court will have a wider jurisdiction to assess all relevant matters than the High Court would have through the narrow prism of judicial review proceedings.

5

For the reasons set out hereinafter, I have concluded that this is one of those exceptional cases where judicial review is the more appropriate remedy. The District Court orders were made in excess of its statutory jurisdiction under both section 10 of the Non-Fatal Offences against the Person Act 1997 and section 99 of the Criminal Justice Act 2006. The residence restriction is disproportionate in that it involves an unjustified and excessive interference with the Applicant's right to liberty and/or his right to free movement within the State.

Factual background
6

The Applicant pleaded guilty to and has been convicted of an offence of harassment under section 10 of the Non-Fatal Offences against the Person Act 1997. The statutory offence of harassment is defined as follows.

“10.(1) Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.

(2) For the purposes of this section a person harasses another where—

(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and

(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other.”

7

The circumstances giving rise to the offence in the present case are as follows. The Applicant has, in effect, admitted that over the course of a period of some eight years he had been surreptitiously taking photographs of his next-door neighbour (“ the injured party“) while she was in the garden of her house. The injured party had been unaware at the time that she was being photographed. The Applicant took more than 12,000 photographs over this period. The photographs were taken using one or other of two digital cameras owned by the Applicant. The images were then transferred by the Applicant to a personal computer. These images have since been recovered from the hard drive of the Applicant's computer by An Garda Síochána through the use of forensic software.

8

When confronted by the Gardaí, the Applicant made admissions. Thereafter, the Applicant entered a guilty plea to the charges against him.

9

A detailed plea in mitigation was made before the District Court (Judge Gerard Haughton) on 1 October 2018. The District Court judge reserved judgment on the matter, and delivered a ruling on 8 October 2018. A transcript of this ruling has since been prepared.

10

In brief, the District Court judge indicated that the headline or tariff for the offence would be a twelve-month sentence of imprisonment. A discount of three months was then applied to reflect the fact that the Applicant had co-operated with the Gardaí and had entered a plea of guilty. The District Court judge next considered whether all or part of the sentence should be suspended. The District Court judge concluded that the appropriate order was to suspend seven of the nine months of imprisonment imposed, subject to certain conditions.

11

The key passages from the transcript of the District Court judge's ruling read as follows (page 2, from line 20 onwards)

“I have to balance all of those things. This offence carries a maximum sentence of 12 months' imprisonment here. It is a serious matter insofar as the number of the images and nature of the images and the period of time over which the matter continued. And in those circumstances, giving him the discount for the fact that he's no previous, pleaded guilty at an early stage, because of the seriousness of the matter I am facing a sentence of nine months' imprisonment for him.

Now, starting at that point, I want to go back to the fact that he has now exited the area and has given an undertaking to dispose of his house. As I have said that, in itself, is a very substantial penalty on Mr. Mooney. Getting him out of the area and getting him away from the injured party is probably the best comfort that the injured party can have and what I am trying to do again is to take that into the mix, so to speak, and see how the best way of ensuring that that actually happens is.

In all of the circumstances, what I am going to do is suspend seven months of the nine months. I think it is essential that Mr. Mooney spend some time in custody to bring home to him the seriousness of the matter and what he did. But I need a substantial part of the sentence hanging over his head to ensure that he complies with the remainder of the order that I am going to make.

So, I am suspending seven months of the nine months sentence. His own bond of €1,000 for three years on the following conditions: that he's not to communicate by any means with the injured party, not to approach within two kilometres of her place of residence, or within 500 metres of her place for employment if they are different and not to reside within eight kilometres, that is five miles, of where the injured party resides.”

12

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3 cases
  • Tallon v Director of Public Prosecutions
    • Ireland
    • Court of Appeal (Ireland)
    • 25 May 2023
    ...on a number of cases in support of their respective positions on the issue of legal certainty. They both referred to Mooney v. DPP [2019] IEHC 625. This was a challenge brought to an order made under s. 10 of the Non-Fatal Offences Against the Person Act, 1997. In that case, Simons J. found......
  • Manuela Lacatus v The Director of Public Prosecutions
    • Ireland
    • High Court
    • 12 June 2023
    ...is a jurisdiction to quash sentences or other discretionary orders. That jurisdiction was well described by Simons J. in Mooney v DPP [2019] IEHC 625 where he identified as follows: “20. In exceptional cases, however, judicial review may also be appropriate where the error touches upon the ......
  • Mooney v DPP
    • Ireland
    • High Court
    • 10 September 2019
    ...principal judgment which was delivered in these judicial review proceedings on 23 August 2019, Mooney v. Director of Public Prosecutions [2019] IEHC 625. 2 It is important to emphasise at the outset the nature of the jurisdiction which this court is exercising. As explained in detail in the......

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