State (McNally) v O'Donovan

• Jurisdiction: Ireland
• Judgment Date: 04 December 1974
• Date: 04 December 1974
• Docket Number: [1973. No. 179 SS.]
• Court: Supreme Court

The State (McNally) v. O'Donovan

THE STATE (at the Prosecution of PATRICK McNALLY)

and

JOHN O'DONOVAN

[1973. No. 179 SS.]

Supreme Court

Criminal law - Sentence - Penal servitude - Whether sentence may be directed to operate from future date - Conviction - Warrant - Uncertainty - Criminal Law (Ir.) Act, 1828 (9 Geo. 4, c. 54), s. 20.

The prosecutor had been convicted of a certain offence and had been sentenced to two years imprisonment from the 29th November, 1971. On the 18th February, 1972, he was convicted on indictment for a felony and was sentenced to three years penal servitude from the legal expiration of "the sentence he is presently serving." A warrant in execution of the sentence of penal servitude was issued; it described the first sentence in the words quoted. On appeal by the prosecutor from a refusal of the High Court to grant him an order of habeas corpus, it was

Held by the Supreme Court (O'Higgins C.J., Walsh and Henchy JJ.), in disallowing the appeal, 1, that a sentence of penal servitude imposed on conviction for a felony and directing that the detention thereunder should commence at the expiration of an existing term of imprisonment being served by the prisoner is authorised by s. 20 of the Criminal Law (Ir.) Act, 1828, as adapted by the Forfeiture Act, 1857.

The State (Jones) v. O'Donovan [1973] I.R. 329 approved.

2. As the prosecutor had furnished evidence of the terms of the sentence of imprisonment, the warrant in execution of the sentence of penal servitude was not invalid on the ground of uncertainty.

Appeal from the High Court.

On the 18th February, 1972, the prosecutor McNally was convicted in the Central Criminal Court on a charge of robbery and on the same day he was sentenced by the trial judge. On the same day a warrant in execution of the sentence was issued. The warrant (Form P.25) was addressed to the governor of Mountjoy Prison and it commanded the governor to receive the prosecutor and to cause him to undergo the sentence which was described on that form as follows:—"To be kept to penal servitude for a period of 3 years, such sentence to take effect from the legal expiration of the sentence he is presently serving." By reason of a previous conviction the prosecutor had been sentenced in the Central Criminal Court to be imprisoned for a period of two years from the 29th November, 1971. The prosecutor had been transferred to the custody of the respondent, who was the governor of Portlaoise Prison.

On the 29th August, 1973, the High Court (Gannon J.) refused an application by the prosecutor for an order under Article 40, s. 4, sub-s. 2, of the Constitution requiring the respondent to certify in writing the grounds of the prosecutor's detention. The application was made by the prosecutor ex parte; he submitted that the sentence of penal servitude which had been imposed was invalid as it had been expressed to commence in futuro. The prosecutor appealed to the Supreme Court. Before the hearing of the appeal, notice of the appeal was served on the respondent.

The judgments of the Supreme Court also decided an appeal by Michael O'Driscoll (1973 No. 24 SS.) in which also the validity of such a sentence of penal servitude was questioned.

Section 20 of the Criminal Law (Ir.) Act, 1828, provides:—"And be it enacted, that whenever sentence shall be passed for felony on a person already imprisoned under sentence for another crime, it shall be lawful for the court to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced; and where such person shall be already under sentence, either of imprisonment or of transportation, the court, if empowered to pass sentence of transportation, may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment or transportation to which such person shall have been previously sentenced, although the aggregate term of imprisonment or transportation respectively may exceed the term for which either of those punishments could be otherwise awarded." Section 2 of the Penal Servitude Act, 1853, provided that the person convicted could be sentenced to penal servitude, in certain circumstances, and s. 7 of the Act of 1853 provides that all acts and provisions then applicable with respect to persons "under sentence or order of transportation" shall, so far as may be consistent with the express provisions of that Act, be construed to extend and be applicable to persons under sentence or order of penal servitude under that Act. The sentence of transportation was abolished in all cases by the Penal Servitude Act, 1857, and s. 6 of that Act provides that, where in any enactment then in force the expression "any crime punishable with transportation"or "any crime punishable by law with transportation" or"any expression of the like import" is used, the enactment shall be construed and take effect as applicable also to any crime punishable with penal servitude.

At the hearing of the appeal there was some discussion about whether a sentence of penal servitude requiring the detention thereunder to commence at a future date conflicts with the provisions of Article 40, s. 1, of the Constitution which states that all citizens shall be held equal before the law, and reference was made to the disabilities imposed by s. 2 of the Forfeiture Act, 1870, as amended. However, the point was not pursued as the Attorney General was not a notice party. It has been held that a sentence of penal servitude, as such, does not contravene the provisions of the Constitution: see The State (P. Woods) v. The Attorney General1, andApplication of Woods.2

Cur. adv. vult.

O'Higgins C.J. :—

I have read the judgment of Mr. Justice Walsh and I agree with it.

Walsh J. :—

Although these two appeals were heard consecutively, the main point in each appeal is common to both and it is convenient to deal with both cases in one...