S.T v District Judge David Anderson and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 10 February 2012
• Neutral Citation: [2012] IEHC 287
• Court: High Court
• Date: 10 February 2012

[2012] IEHC 287

THE HIGH COURT

[No. 916 J.R./2010]

T (S) (a minor) v District Judge Anderson & DPP

JUDICIAL REVIEW

BETWEEN

S.T. (A MINOR APPLYING BY HIS SISTER AND NEXT FRIEND, A.M.T.)

APPLICANT

AND

DISTRICT JUDGE DAVID ANDERSON

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S18

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S11

MISUSE OF DRUGS ACT 1977 S15

CHILDREN ACT 2001 S99

CHILDREN ACT 2001 S99(1)(B)

CHILDREN ACT 2001 S99(4)

MOONEY v GOVERNOR OF ST PATRICKS INSTITUTION UNREP PEART 13.11.2009 2009/40/9915 2009 IEHC 522

FIREARMS & OFFENSIVE WEAPONS ACT 1990 S9(1)

CONSTITUTION ART 40.4.2

CHILDREN ACT 2001 S96

CHILDREN ACT 2001 S96(2)

DPP v HAND UNREP CCA 18.11.2010 2010/15/3708 2010 IECCA 113

CHILDREN ACT 2001 S99(4)(B)

CHILDREN ACT 2001 S99(4)(B)(ii)

Crime - Judicial review - Possession of stolen property - Criminal Justice (Theft and Fraud Offences) Act 2001 - Trespass - Criminal Justice (Public Order) Act 1994 - Consecutive detention - Certiorari - Consideration of probation report - Sentencing - Children Act 2001 - Similarity of offences

Facts: The applicant was convicted of a count of possession of stolen property contrary to s 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and a count of trespass contrary to s 11 of the Criminal Justice (Public Order) Act 1994. He was sentenced to eight months and six months detention respectively, to be served consecutively. Prior to sentencing, counsel for the applicant informed the first respondent that an updated probation report was due the following week. The applicant therefore sought an adjournment to allow that new report to be considered. This was rejected with the first respondent instead considering only an earlier report.

The applicant applied for judicial review seeking on order of certiorari on the ground that the first respondent was obliged to obtain a probation and welfare report when considering a custodial sentence in cases such as the instant under s 99 of the Children Act 2001. Counsel for the first respondent submitted that s 99(4)(b) of that Act stated that the court may decide not to order a report where a recent copy was available, and where details of the offences were similar. The applicant in turn submitted that the two offences detailed in the reports were not similar and so a fresh copy was required.

Held by Dunne J that no set parameters applied when deciding whether the offences for which the reports applied to were similar. In the present case, the first respondent judge had sight of not only the earlier report, but also the relevant charge sheets for each offence. Given the information before the first respondent and the discretion allocated to him, the decision made could not be challenged. This also applied in respect of the first respondent's decision to not follow the earlier report's advice of an adjournment.

Relief sought refused.

1 Judgment of Ms. Justice Dunne delivered on 10th day of February, 2012.

2 This is an application for an order of certiorari by way of judicial review quashing the order of the respondent herein made on the 30 ^th June, 2010 convicting and sentencing the applicant to eight months detention and six months consecutive detention on two charges, one of possession of stolen property contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and trespass contrary to s. 11 of the Criminal Justice (Public Order) Act 1994. Further ancillary relief is sought.

Background

3 Following the conviction of the applicant, evidence was given by Garda Griffin in respect of the previous convictions of the applicant. They included nine road traffic offences, two public order offences and two offences contrary to the Misuse of Drugs Act. Only one custodial sentence had been imposed on the applicant previously, being a term of four months detention in respect of an offence contrary to s. 15 of the Misuse of Drugs Act.

4 Counsel on behalf of the applicant informed the respondent that the applicant was at that time under the supervision of the Probation and Welfare Services and due back before the Children's Court for an updated probation report the following week, that is on the 6 ^th July, 2010. In those circumstances counsel on behalf of the applicant asked that the respondent not finalise matters that day. Ms. Annaleen Mackin, trainee solicitor who was in attendance on counsel on that day and who has sworn the grounding affidavit on behalf of the applicant, outlined in the affidavit that the respondent was told that there was an interim probation report dated the 25 May, 2010 before the Children's Court. That report had made recommendations including a requirement that the applicant secure an educational/training placement. He had obtained such a placement and it was submitted that he was engaging positively with the Probation and Welfare Service.

5 It is stated that the District Court clerk left the courtroom and returned to court "with what appeared to be the applicant's entire Children's Court file and handed it to the learned District Judge". The respondent asked for and was given a copy of s. 99 of the Children Act 2001. It was submitted by counsel on behalf of the applicant to the learned District Judge that as he was engaging with the Probation Services and other matters had been adjourned to the 6 ^th July, 2010, that the respondent should order a further report or at the very least view the report scheduled for the 6 ^th July, 2010.

6 Ms. Macken goes on in the affidavit to say that the only probation report that the respondent appeared to read was that of the 24 ^th May, 2010. It is further stated by her that the learned District Judge "gave no indication that he had read or considered the probation report dated the 7 ^th December, 2009, which sets out crucial background information regarding the applicant".

7 The affidavit goes on to assert that if the report on the 7 ^th December, 2009 had been considered "properly or at all" in conjunction with an updated current report, a proper assessment of relevant factors for a sentencing Judge could have been carried out. However, the learned District Judge did not order a probation report. A discussion took place before him as to the status of the applicant in respect of bail at the time of the offence. There was also a reference made by the learned District Judge to "nineteen charges" although the context of this reference is not entirely clear. On hearing that the applicant was on bail on the 10 ^th March, 2010, the date of the trespass offence, the learned District Judge, having had further submissions from counsel on behalf of the applicant, imposed sentence. Following the imposition of sentence, further matters were canvassed before the court. An issue was also raised in these proceedings in relation to the recognisances fixed by the learned District Judge in respect of an appeal from his decision. I do not need to concern myself with the issue in relation to recognisances as that issue is now moot.

8 A replying affidavit was sworn by Garda Andrew Lambe, the prosecuting Garda present on the 30 ^th June, 2010. He takes issue with the assertion that the court clerk left the court at any stage of the proceedings. Rather, he explained that the court sergeant, Sergeant Moloney, left the court and returned with the charge sheets in respect of the applicant which had been remanded until the 6 ^th July, 2010. Garda Lambe said that he had been informed and believed that there was no file known as the Children Court file on this or any other defendant. He confirmed that the charge sheets, to which the probation and welfare report dated the 25 ^th May, 2010 related, were examined by the learned District Judge.

9 Garda Lambe said that he did not know what probation reports were before the court. He said that he had been advised that one District Judge was not bound by what another District Judge may or may not have decided. The learned District Judge could not make any assumption as to the basis upon which another District Judge may have decided to order a further probation report on a previous occasion. He also made the point that the learned District Judge in this case was in possession of additional information that would not have been known to a previous District Court Judge dealing with the applicant, namely, that the applicant had contested two offences but had been convicted of those offences.

10 He finally stated that he was informed by a probation officer that the Probation and Welfare Service do not make recommendations in respect of convicted persons who do not accept their guilt.

11 A further affidavit was sworn on behalf of the applicant by Ms. Macken. In that affidavit she took issue with Garda Lambe's averments in respect of a number of matters, namely, the number of charge sheets that had been remanded to the 6 ^th July, 2010, in respect of the applicant, the identity of the person who furnished the charge sheets to the learned District Judge and the issue as to whether or not the court clerk or Sgt. Moloney left the courtroom. She stated that Garda Lambe was not shown any documentation that the respondent was perusing and therefore could not state what documents were being read by the respondent.

12 Finally, an affidavit was sworn by Sgt. Caroline Moloney and she stated in her affidavit that when the learned District Judge asked what charges were before the court on the 6 ^th July and requested the charge sheets in relation to those matters, she left the courtroom and retrieved the charge sheets that had been remanded to the 6 ^th July, 2010 and brought those to the courtroom and handed them to the court clerk who then gave them to the Judge.

13 It is obvious that there is some degree...