People v Aylmer

JurisdictionIreland
JudgeGriffin J.,McCARTHY J.,HEDERMAN J.
Judgment Date01 January 1995
Neutral Citation1986 WJSC-SC 284
CourtSupreme Court
Docket Number(23/85)
Date01 January 1995

1986 WJSC-SC 284

THE SUPREME COURT

Walsh J.

Henchy J.

Driffin J.

Hederman J.

McCarthy J.

(23/85)
DPP v. AYLMER
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OFPROSECUTIONS)
v.
RAYMOND AYLMER

Citations:

CONSTITUTION ART 13.6

CRIMINAL JUSTICE ACT 1951 S23

CRIMINAL LAW (JURISDICTION) ACT 1976 S23

CRIMINAL LAW (JURISDICTION) ACT 1976 S5

DPP, PEOPLE V CAHILL 1980 IR 8

DPP, PEOPLE V FAGAN 2 FREWEN 200

DPP, PEOPLE V O'SHEA 1983 ILRM 549 1982 IR 384

DPP, PEOPLE V O'TOOLE 2 FREWEN 200

LARCENY ACT 1916 S23

MCHUGH V MCGOLDRICK 1921 2 IR 163

O'CONNOR, STATE V O CAOMHANAIGH 1963 IR 112

PEOPLE V CONMEY 1975 IR 341

PEOPLE V CRONIN 1972 IR 159

WOODS, STATE V AG 1969 IR 385

Synopsis:

CRIMINAL LAW

Sentence

Suspension - Revival - Bond - Breach - On 16/3/79 the prisoner was sentenced to ten years imprisonment - The order of the Central Criminal Court (Butler J.) provided that the prisoner should serve 36 months of that sentence and should then be brought before the court and that, if the court were then satisfied that the prisoner had observed prison discipline and had tried to learn a trade, the court would then consider suspending the balance of his sentence - Having served 36 months of the sentence, the prisoner applied to the Central Criminal Court (Finlay P.) for an order suspending the balance of the sentence - On 23/3/82 the prisoner entered into a bond to keep the peace for five years and to serve the balance of the sentence, if so required, and the court then directed that the balance of the sentence be suspended upon those terms - On 2/3/84 the prisoner was convicted of burglary and was sentenced to 12 months imprisonment for that offence - The Director of Public Prosecutions applied to the Central Criminal Court (Finlay P.) for an order directing the prisoner to serve the balance of his sentence of ten years imprisonment - On 14/1/85 Finlay P. ordered that the prisoner serve the balance of his sentence of ten years imprisonment - The prisoner appealed to the Supreme Court against the order of 14/1/85 - There was no appeal from the order of 16/3/79 or from the order of 23/3/82 - Held by the Supreme Court (5 judges), in dismissing the appeal, that there was clear evidence of a breach of the condition of the prisoner's bond and that, accordingly, the order of 14/1/85 had been properly made - The limitation, imposed by the circumstances, of the possible grounds for impugning the decision to restore the balance of the ten-year sentence persuaded the prisoner to rely upon the views expressed by the Court of Criminal Appeal in ~The People v. Cahill~ [1980] I.R. 8 in questioning the suitability of the form of sentence imposed by Butler J. - The prisoner thus sought, by questioning the validity of the sentence imposed by Butler J., to throw doubt on the validity of the consequential orders of 23/3/82 and 14/1/85 - In giving their judgments in this appeal, two of the judges expressed the opinion that the sentence imposed by Butler J. was a valid sentence, and drew attention to the fact that the Supreme Court in ~The State (P. Woods) v. The Attorney General~ [1969] I.R. 385 had accepted the validity of a similar sentence - (23/85 - Supreme Court - 18/12/86) - [1995] 2 ILRM 624

|The People v. Aylmer|

1

JUDGMENT OF WALSH J.delivered on the 18th day of December 1986

2

On the 16th March 1979 the appellant pleaded guilty in the Central Criminal Court to the offence of robbery contrary to s. 23 of the Larceny Act, 1916, as inserted by s. 5 of the Criminal Law (Jurisdiction) Act, 1976. He was sentenced to ten years imprisonment by the presiding Judge, the late Mr. Justice Butler. The order of the Court which was drawn up after the conviction directed "that the accused be brought back before the Court after he has served 36 calendar months and if in the meantime he has conformed with normal prison discipline and has tried to apply himself to learning a skill, the Court will consider suspending the then balance of the sentence herein." The transcript of the hearing records the following words as having been uttered by the learned trialJudge:-

"In respect of the charge of robbery I impose a sentence of ten years imprisonment, detention in respectof two minors, Ryan and Collins. Ten years imprisonment in respect of Aylmer ........ I direct they serve 36 months of the sentence. If, in the meantime, they observe prison discipline and try to learn a skill and I can get some hope that they will be able to get into useful gainful employment and keep out of crime I will consider suspending the balance in each case. I recommend that if it is possible or if the Minister considers it proper that provisions be made that Aylmer be transferred back to St. Patrick's. [Aylmer indicated he would prefer to go to prison]. Judge - I am imposing the sentence on Mr. Aylmer. In all cases I recommend that the prison authorities try to see whether all the accused can be given some trade or training."

3

Collins and Ryan were co-accused.

4

No appeal was ever taken to the Court of Criminal Appeal or elsewhere against either the sentence or the form of the sentence. On that occasion the appellant also asked that 104 other offences be taken intoaccount.

5

Thirty six months later namely, on the 16th March 1982, the appellant appeared before the Central Criminal Court again pursuant to the order made on the date of his conviction. On that occasionthe presiding Judge was the then President of the High Court and now Chief Justice, Mr. Justice Finlay. The matter was adjourned until the 23rd March and on that occasion the learned President of the High Court ordered that the balance of the sentence to be served by Aylmer be suspended, and Aylmer in open Court acknowledged himself bound to the people of Ireland in the sum of £100, the conditions being that he would keep the peace and be of good behaviour towards all the people of Ireland for the period of five years from the 23rd March 1982, and further that he would come up if called upon to do so at anytime within the said period of five years to serve the balance of the sentence of the Court of the 16th March 1979; the appellant having acknowledged himself so bound was discharged.

6

On the 2nd March 1984 he was convicted in Limerick on two charges of breaking and entering and causing malicious damage. On the 14th January 1985 on the motion of the Director of Public Prosecutions the matter appeared in the list of the Central Criminal Court again presided over by the then President of the High Court, Mr. Justice Finlay. The Director of Public Prosecutions brought to the attention of the Court the fact that the accused was in breach of the bond in which he had entered into on the 23rd March 1982, and applied that thebalance of the suspended sentence should be brought into effect. In addition to the malicious damage and breaking and entering charges there was also evidence that he had in the interval been convicted of several other offences. On that occasion the then President of the High Court recalled that the sentence of Mr. Justice Butler had never beeen appealed and that there was no way in which he could "conceivably have any jurisdiction to interfere with it." He also recalled the fact that it was he who suspended the sentence after the thirty six months in prison, but that he did not have any jurisdiction to reduce that sentence. He took the view that he could either uphold or refuse to uphold the balance of sentence but he couldn't interfere with the term of it. He also said "it seems to me that I am entirely precluded from inquiring into the correctness of the sentence imposed by Judge Butler. I think the venue for that could only be an appellate Court and the time for that has long since expired." In reply to a plea on behalf of the appellant that a discretion be exercised with regard to serving the balance of the sentence, the President took the view that his function was to decide whether on the evidence he had heard it had been established that the appellant had been in breach of his bond and indeed he was satisfied that he was soin breach. The President decided to put into force the balance of the sentence and used the following words in addressing the appellant.

7

"The legal position in this case is in my view quite clear. The late Mr. Justice Butler in 1979 imposed a sentence of ten years imprisonment on a plea of guilty to a serious offence of robbery from the person using violence. He put a lenient provision into that in providing that after 36 months in prison you should be entitled to apply to the Court for the suspension of the balance of your sentence. You made such an application. The late Mr. Justice Butler unfortunately had died when the matter came before me, and on hearing evidence and the evidence from a Probation Officer of your apparent move towards rehabilitation, I suspended your sentence, but I specifically warned you that if within the three year period of the bond to be of good behaviour, you got involved in serious crime the sentence would have to be served in its entirety. It had been established to my satisfaction that you had been convicted of what I consider to be a serious crime for which the District Court imposed the maximum sentence. Your appeal against that was withdrawn and it was confirmed at the Circuit Court. I have no option but to reimpose that sentence and it seems to me that it is within my power to reimpose it from the date you were first sentenced on these other charges, and that you should serve only one of these sentences. If I can be informed ofthat precise date, that is the only concession I can make. It seems only just that I should do that. The State could have moved like lightning and brought their application. That is not practical but it gives me the power not to impose consecutive sentences."

8

The present appeal is against that order of the Central Criminal Court of 14th January...

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