Pudliszewski v District Judge John Coughlan & DPP
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE MacMENAMIN |
| Judgment Date | 23 January 2006 |
| Neutral Citation | [2006] IEHC 304 |
| Docket Number | [No. 687 J.R./2005] |
| Court | High Court |
| Date | 23 January 2006 |
[2006] IEHC 304
THE HIGH COURT
AND
DPP v C (W) 1994 1 ILRM 321
DPP v KELLY 2005 1 ILRM 19
DPP v M 1994 3 IR 306 1994 2 ILRM 541
DPP v MCCORMACK 2000 4 IR 356
ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION & METEOR MOBILE COMMUNICATIONS LTD 2000 4 IR 159
OXFORD ENGLISH DICTIONARY "BIAS"
MCGRANE v JUDGE COUGHLAN & DPP UNREP HIGH 30.6.2005
DUNNE v JUDGE COUGHLAN UNREP DUNNE 25.4.2005
MCGOLDRICK v AN BORD PLEANALA 1997 1 IR 497
HARRIS v CLYNE UNREP MACMENAMIN 23.1.2006
NEVIN v CROWLEY 2001 1 IR 113
GILMARTIN v MURPHY & DPP 2001 2 ILRM 442
discretion in relation to sentencing of applicant - Whether evidence of application of inflexible sentencing policy - Whether evidence of objective bias - Whether respondent acting outside jurisdiction thereby - Whether sentence should be quashed
Judicial review - Alternative remedy - Discretion to refuse relief - Whether discretion should be exercised to refuse relief.
it was not in dispute that the respondent, after sentencing the applicant to three months imprisonment for receiving stolen property, said in open court that “the golden rule is that receivers go to jail”. The applicant sought by way of judicial review, to quash the sentence on the basis that the respondent acted outside jurisdiction by applying an inflexible sentencing policy in relation to him. It was contended that there was a reasonable apprehension of objective bias on the part of the respondent thereby.
Held by Mr Justice MacMenamin in quashing the sentence and remitting the matter back to an alternate judge of the District Court that the exercise of judicial discretion in sentencing should never be formulaic in approach nor subordinated to a fixed policy criteria and that the only clear, ordinary and reasonable meaning which could be attached to the respondent’s impugned statement was that either the respondent fettered his own discretion unduly limiting the District Court’s sentencing jurisdiction or that he appeared to do so with the consequence that it was open to a reasonable person to conclude that there was a perception of objective bias. That in deciding whether to grant judicial review where a notice of appeal had been filed, the court had to determine whether the applicant had prosecuted his appeal so far as to give rise to estoppel.
Reporter: P.C.
The applicant in these proceedings seeks an order ofcertiorari by way of an application for Judicial Review quashing the order of the first named respondent made on 10th May, 2005, in respect of District Court proceedings, the subject matter of the application, convicting and sentencing the applicant to a period of imprisonment. The relief claimed by the applicant also includes an order of prohibition and/or injunction by way of an application for Judicial Review restraining the second named respondent from further prosecuting or taking any further steps in the District Court proceedings. Further, the applicant seeks a declaration by way of application for Judicial Review that the first named respondent acted without or in excess of jurisdiction and otherwise in accordance with law in convicting and sentencing the applicant as described. The applicant further contends that the first named respondent acted in breach of the rules of natural and constitutional justice in convicting and sentencing the applicant as described and further seeks a declaration by way of application for Judicial Review that the first named respondent acted unreasonably and/or irrationally in convicting and sentencing the applicant as described later in these proceedings.
The essential ground which is relied on by the applicant can be discerned from the facts of the case which are set out and described in the course of the affidavits sworn herein. The applicant was brought before the court presided over by the first named respondent on a number of prior occasions. The hearing was ultimately adjourned to 10th May, 2005. Pleas of guilty were offered in relation to the complaints listed for hearing. A number of different charges were standing against the applicant. A summary of the facts, in relation to the offences, was then given by the prosecution which confirmed that the applicant had no previous convictions, and this was followed by a plea in mitigation made on behalf of the applicant by his solicitor.
The first named respondent proceeded to convict the applicant in relation to the criminal proceedings, the subject matter of the application and sentenced him to a period of three months” imprisonment which he made consecutive to a total of a period of six months” imprisonment which was imposed in respect of other offences.
It is submitted on behalf of the applicant that the nub of this case is that in proceedings to convict and sentence the applicant in relation to the proceedings, the subject matter of the application, the first named respondent stated in relation to a receiving charge the following; alleged to be "a fixed policy":
"The golden rule is that receivers go to jail."
The matter is further dealt with by the affidavit which is sworn herein by Garda Anthony Collins which sets out in greater detail the context in which it appears these remarks were made. He says that he attended Dublin Metropolitan District Court in order to prosecute the case against the applicant and a co-accused in relation to the theft of a laptop computer. The applicant pleaded guilty to a number of offences before the Court on that date which included the offences set out, to which I will refer in one moment.
These offences included various road traffic offences of what might be seen as a relatively minor nature. Other offences which were of a more serious nature, including the charge which gives rise to the instant case which was theft and fraud, the handling of a stolen Dell laptop computer, concerning which the applicant was sentenced to three months” imprisonment.
It is important that the Court in assessing what took place in the District Court confines itself to the issues which are actually relevant to this application for Judicial Review. The issue which arose in this case is the remark which the District Court judge made apparently in relation to receiving offences in the context of the penalty which is imposed for the handling of the Dell laptop.
Garda Collins states that in turning to the sentence of the applicant, the first named respondent made comments to the effect that the handling of stolen property belonging to other people was a very serious matter. He stated that the applicant had held a position of trust in Linders of Chapelizod, who were the applicant's employers, at the time of the offence. In this context, it should be pointed out that the applicant had admitted that the vehicle in which he was travelling when he was apprehended with the stolen laptop computer had been removed from Linders of Chapelizod without knowledge of the management. The first named respondent stated that the applicant had abused the trust in which he was held. He proceeded to sentence the accused. Having outlined the charges set out at paragraph 18 of the affidavit, Garda Collins states that while the first named respondent was delivering his sentence Mr. Feaney, the solicitor for the applicant, began to ask the first named respondent if he would consider taking another course of action rather than imprisonment. The first named respondent refused to accede to his application. Mr. Feaney then pressed him and it was in that context that the first named respondent made the remark that "the golden rule is that receivers go to jail." Garda Collins states this remark was made after sentencing had been announced and was not stated as a rule used by the first named respondent at the outset of the sentencing. It was in a very particular context it was contended that the remark was made. The Court, however, must consider the overall situation having assessed the affidavit evidence which has been brought before it in this case.
Prior to considering the submissions made on behalf of the respondent, it is appropriate to point out that there are patently a number of facts which are relevant here. The first is that the applicant pleaded guilty. I am satisfied that this is an issue of which the court should put some weight in the determination of the relief which ultimately should be granted. The second point is the actual sentence of three months. It is submitted by counsel for the respondent that this was not an excessive sentence and/or that it was not disproportionate.
I do not consider that the question of the proportionality or otherwise of the sentence is at issue in this case. The essential issue in this case is as to whether or not there is evidence of subjective or objective bias or inflexible policy such that goes to jurisdiction. The next point that must be borne in mind is that the relief which is sought by the applicant relates only to this one charge of receiving and not in relation to the other charges which were considered by the District Court. It is submitted on behalf of the...
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