Silaghi v Judge O'Hagan

• Jurisdiction: Ireland
• Judge: Mr. Justice White
• Judgment Date: 27 January 2017
• Neutral Citation: [2017] IEHC 29
• Date: 27 January 2017
• Court: High Court
• Docket Number: [2015 No. 354 J.R.] [2015 No. 355 J.R.]

[2017] IEHC 29

THE HIGH COURT

JUDICIAL REVIEW

White Michael J.

[2015 No. 354 J.R.]

[2015 No. 355 J.R.]

BETWEEN

NAPOLEON SILAGHI

FIRST APPLICANT

AND

JUDGE O'HAGAN

RESPONDENT

BETWEEN

LUCIAN MARINA

SECOND APPLICANT

AND

JUDGE O'HAGAN

RESPONDENT

Crime & Sentencing – Imprisonment – Committal Warrant – Judicial Review – Order of Certiorari – Criminal Justice (Community Service) Act 1983 – S. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001

Facts: Following the affirmation of conviction and order of the District Court, the applicants/accused in the two set of proceedings were granted leave to apply for judicial review. The applicants sought orders of certiorari for quashing the orders affirming sentences of six months imprisonment and quashing the committal warrants. The applicants argued that the committal warrant ought to mention that before the pronouncement of sentence, the respondent considered sentencing options and immediate custodial sentence. The applicants further submitted that the Circuit Court while affirming the sentence imposed by the District Court ought to categorically give reasons for declining the option of community service to the applicants in accordance with s. 3(1) of the Criminal Justice (Community Service) Act 1983, as inserted by s. 3 of the Criminal Justice (Community Service (Amendment) Act 2011. The respondent contended that the applicant had failed to raise the matters at the appeal hearing.

Mr. Justice White held that the reliefs would be refused. The Court held that the committal warrant clearly disclosed the criminal offence and the penalty. The Court stated that the learned judge was bound under law to provide particular reasons for declining to consider the alternative sentence of community service. The Court, however, stated that the learned judge was mandated to clearly express that it had considered the available alternative options. The Court found that it was clear from the transcript that the learned judge on appeal took serious view of the offences committed by each of the accused/applicant and expressed an opinion to the effect that leniency had already been granted to them while the imposition of lesser term of sentence by the District Court. The Court thus held that by implication, the alternative of community service had been adequately considered by the learned judge.

JUDGMENT of Mr. Justice White delivered on 27TH January 2017

1 By separate orders of leave of 22nd June, 2015, the High Court granted the applicants leave to apply for judicial review for the following reliefs.

(i) An order of certiorari by way of an application for judicial review quashing the order of the respondent made on 9th June, 2015, affirming a sentence of six months imprisonment imposed on the applicant by the District Court on 7th January, 2014, and committing the applicant to Castlerea Prison for a period of six months for an offence of entering a building as a trespasser and committing an arrestable offence, to wit criminal damage herein.

(ii) An order of certiorari by way of an application for judicial review quashing the order of the respondent made on 9th June, 2015, affirming a sentence of six months imprisonment imposed on the applicant by the District Court on 7th January, 2014, and committing the applicant to Castlerea Prison for a period of six months, for an offence of stealing property to with copper wires, electrical motors, electrical fuses, aluminium parts and various metal parts.

(iii) An order of certiorari by way of an application for judicial review quashing two committal warrants after appeal issued by the respondent on 9th June, 2015, each committing the applicant to Castlerea Prison for a period of six months and numbered #1 and #2 respectively.

The court has been informed that while leave was granted on paras. 4 and 5 of the order that these are not being proceeded with.

2 The applications were grounded on the affidavit of John M. Quinn, Solicitor, sworn on 22nd June, 2015. Motions were issued on 23rd June, 2015 in each case returnable for 24th June, 2015.

3 A statement of opposition was filed in each case on 22nd June, 2016, supported by affidavits of Rory Hayden, State Solicitor for Co. Cavan sworn on 18th January, 2016.

4 Both applicants were admitted to bail pending the judicial review.

5 The matter was heard before this Court on 14th of October, 2016, and judgment reserved. It was conceded on behalf of the Respondent that the committal warrant in respect of the First Applicant on the offence contrary to Section 12(1) (b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001, was bad on its face and the First Applicant was entitled to an order of certiorari in respect of same.

6 The court was also informed that the First Applicant was no longer seeking to argue that there should have been disparity in sentencing between him and the other accused because of his less blemished previous record. Counsel for the First Applicant accepted that in the light of a recent Court of Appeal decision DPP v O'Neill [2016] IECA 58. that argument was not longer being made. That is a correct interpretation of the law, even though this courts view was that the sentence imposed on Mr Silaghi was somewhat harsh considering the difference in his previous record from the other co- accused, and the explanation offered to the appeal court of the nature of the one blemish on his character, the road traffic conviction.

7 Both applicants appeared before Virginia District Court on 7th January,2014, facing a number of charges and the applicants pleaded guilty to the following offences:-

(i) on the 5th August, 2013, at Bailieboro Foundry, Bailieboro, Co. Cavan in the court area and district aforesaid, having entered a building known as Bailieboro Foundry as a trespasser with intention to commit an arrestable offence to wit theft; and

(ii) on the 5th August, 2013, at Bailieboro Foundry, Bailieboro, Co. Cavan in the court area and district aforesaid did steal property to with electrical fuses, aluminium parts and various metal parts estimated at €4,000, the property of John Flemming.

8 Facts were heard and mitigation was offered in the District Court where Judge McBride sentenced both applicants to six months imprisonment on each of the two charges same to be served concurrently,

9 Recognisances were fixed in the applicant's bonds of €1,000 cash. Appeals were lodged in respect of severity of sentence which came on for hearing before the respondent sitting in Cavan Circuit Court on 9th June, 2015.

10 The applicants were represented by counsel.

11 In respect of the first applicant, counsel made a plea of mitigation to the respondent as follows:-

‘May it please the court in relation to Mr. Silathi who is 31 years of age, lives in Ireland since 2008 with his wife, he is married with two children who are eight and four. He brings his eldest child to school while his wife cares for the younger child. His wife is unwell with stomach problems and depression, he is a mechanic by trade and is presently on job seekers allowance, €126 per week, he is earning additional monies from the work as a mechanic part time. His rent is €125 per month, in relation to the offences he is apologising my Lord, he is not making any excuses. He did make admissions in garda interview. The position was he had come to happen to buy a car, that transaction fell through and this was an opportunistic crime which the three men engaged in on their way home. He does not have any similar previous convictions as the court heard, his previous convictions were only for road traffic. The court has not dealt with this but Judge McBride in the District Court accepted the explanation given by Mr. Silathi in relation to those offences which was he had been using the vehicle which was a private vehicle as a commercial vehicle and that is why the tax was wrong and he was not covered by insurance. The inspector in the District Court confirmed that the vehicle he was driving on the night of this offence was entirely road legal as it were. He is willing to engage in the probation services including with a view to performing community service, he understands the mechanism of a suspended sentence and is willing to comply with any conditions of a bond that the court might impose. I will respectfully submit that particularly in light of his position the previous convictions and so on, that the immediate custodial sentence of six months, particularly in Mr. Silathi's case may thought by the court as somewhat disproportionate particularly in the light of other punitive measures the court might have imposed in lieu of that’.

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