People (Attorney General) v Poyning

JurisdictionIreland
Judgment Date03 March 1972
Date03 March 1972
Docket Number[No. 67 of 1971]
CourtCourt of Criminal Appeal

Court of Criminal Appeal

[No. 67 of 1971]
The People (Attorney General) v. Poyning
THE PEOPLE (at the Suit of THE ATTORNEY GENERAL)
and
KENNETH JOHN POYNING

Criminal Law - Sentence - Review - Co-defendants receiving lesser sentences than appellant - Starting point for term of penal servitude - Road traffic - Driving licence - Disqualification - Road Traffic Act, 1961 (No. 24), ss. 26, 27.

Criminal Appeal.

On the 3rd November 1971, in the Circuit Court in Cork the applicant, Poyning, was arraigned on an indictment containing five counts. He pleaded guilty to the charges in counts 1, 2 and 5 and the prosecution entered a nolle prosequi in respect of counts 3 and 4. Count 1 contained a charge of armed robbery contrary to s. 23, sub-s. 1(a), of the Larceny Act, 1916. Count 2 contained a charge of conspiracy and count 5 contained a charge of taking a vehicle without authority contrary to s. 112 of the Road Traffic Act, 1961. On the same day His Honour Judge T. J. Neylon sentenced the applicant to four years penal servitude from the 20th August, 1971, on the first count; he also sentenced the applicant to 12 months imprisonment on the second count and to six months imprisonment on the fifth count.

In addition, the judge ordered that the applicant be disqualified for 10 years from holding a driving licence in Ireland, and directed that the disqualification was to be endorsed on the applicant's driving licence. The transcript of the proceedings before the Circuit Court judge showed that, after he had sentenced the applicant to the term of penal servitude and to the terms of imprisonment, the judge said:— "Now I am going to exercise the powers invested in me by the Road Traffic Act where, if a car is stolen and used in the perpetration of crime—and I am going to suspend his right to hold a driving licence in this country for ten years, and that will be endorsed on his licence." It appears from the words just quoted that the judge was invoking the provisions of s. 27, sub-s. 1(a), of the Road Traffic Act, 1961, which are as follows:— "Where a person is convicted of an offence under this Act or otherwise in relation to a mechanically propelled vehicle or the driving of any such vehicle (other than an offence in relation to which section 26 of this Act applies) or of a crime or offence in the commission of which a mechanically propelled vehicle was used, the court may, without prejudice to the infliction of any other punishment authorised by law, make an order (in this Act referred to as an ancillary disqualification order) declaring the person convicted to be disqualified for holding a driving licence." Section 36, sub-s. 3(a), of the Act of 1961 states that, when an ancillary disqualification order is made, the court shall by order direct that particulars of the conviction and the disqualification order be endorsed on the driving licence of the person disqualified.

Motherway and Twomey were also indicted for the same armed robbery but the trial of those men was transferred to the Central Criminal Court in Dublin where they pleaded guilty to counts of armed robbery and received sentences of six years penal servitude, which were suspended upon those men entering into bonds to keep the peace for five years.

The applicant applied to the Court of Criminal Appeal for leave to appeal against the sentences imposed on him.

The defendant was arraigned in the Circuit Court on an indictment of which the first count charged him with having committed an armed robbery and the fifth count charged him with having taken a motor car without authority on the same occasion contrary to s. 112 of the Road Traffic Act, 1961; he pleaded guilty to both counts and he was sentenced by that court to four years penal servitude on the first count, commencing at a date prior to his conviction. The Circuit Court judge sentenced the defendant to six months imprisonment on the fifth count, and the judge also disqualified the defendant from holding a driving licence for 10 years and ordered that the disqualification be endorsed on the defendant's driving licence. Two other men were also charged with having committed armed robbery with the defendant on the same occasion but their trial was transferred to the Central Criminal Court where each of them pleaded guilty and was sentenced to six years penal servitude, but that sentence was suspended upon each prisoner entering into a bond to keep the peace for five years and each of them was released. The defendant applied for leave to appeal against the sentences imposed on him.

Held by the Court of Criminal Appeal (Walsh, Butler and Pringle JJ.), 1, that the defendant's sentence of penal servitude, while it should not have been expressed to commence before the date of his conviction, was an appropriate one, and accordingly the sentence should not be reduced although it appeared that the defendant's co-defendants had been treated more leniently.

2. That the question of a...

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