The People (Director of Public Prosecutions) v Colbert

JudgeO'Donnell J,Mr Justice Peter Charleton and Ms Justice Iseult O'Malley
Judgment Date28 November 2016
Neutral Citation[2016] IESC 69
CourtSupreme Court
Docket Number[S.C. No. 348 of 2013],348/13 Supreme Court appeal number: 2013 No 000348 Court of Criminal Appeal record number: 2011 No 204 Bill number: 1263A/07 Dublin Circuit Criminal Court [2016] IESC 000
Date28 November 2016

[2016] IESC 69

An Chuirt Uachtarach


O'Donnell Donal J.

Charleton J.

O'Malley J.

Denham C.J.

O'Donnell Donal J.

Clarke J.

Charleton J.

O'Malley J.


Supreme Court appeal number: 2013 No 000348

Court of Criminal Appeal record number: 2011 No 204

Bill number: 1263A/07 Dublin Circuit Criminal Court

[2016] IESC 000

The People (at the suit of the Director of Public Prosecutions)
- and -
Maurice Colbert

Crime & sentencing – Sexual offences – Sentencing for multiple sexual assaults – Whether time served in custody and on remand to be considered where conviction subsequently quashed – S 3 Criminal Procedure Act 1993

Facts: The appellant had been convicted of multiple counts of sexual violence against a young girl. He sought to appeal his sentence to the Court of Criminal Appeal. His appeal was dismissed, but the Court of Criminal appeal decided to refer two points of law to the Supreme Court for determination. The points revolved around whether the time served in custody and on remand should be considered on appeal where a sentence was subsequently quashed.

Held by Ms Justice O’Malley and Mr Justice Charleton in a joint judgment, that the appeal would be allowed (Mr Justice O’Donnell also handed down a judgment). The Justices declined to give strict answers to the questions posed by the Court of Criminal Appeal, stating that to do so would limit the proper exercise of sentencing discretion. The Court rather stated that prior time served in custody solely related to the offence a defendant was convicted of was to be taken as relevant. Further, the change of circumstances between sentencing and appeal such as a quashed relevant conviction was a matter to be considered on appeal.

Judgment of O'Donnell J delivered the 28th of November 2016

This is in my view, an unsatisfactory case from the position of almost all the participants, and indeed the public interest. In a broader context it bears scrutiny as an example of many of the difficulties which can be encountered in the criminal justice system. In relation to the narrow issue raised on this appeal I agree with the joint judgment of Charleton and O'Malley JJ and the disposition of the case they propose. I wish to add something on the question of the interpretation in this case of the decision in DPP v Cunningham [2002] 2 IR 715.


The critical feature of this case is that when the appellant was sentenced on the 15th of July, 2011 (in what I will call ‘Case 2’ because it is later in time), he was at the time a man who had a previous conviction for a related and more serious offence (which I will call ‘Case 1’) which was closely connected to this case. It is clear that the existence of both the previous conviction and the sentence imposed were important factors by the time the trial judge came to consider sentence in Case 2 on the 15th of July, 2011. First, it was entirely relevant to sentence that the convicted man had, at that point, a previous conviction related in nature, time and fact to the offence for which he had just been convicted. Second, at the level of practicality, the fact that a lengthy prison sentence had been imposed in Case 1 meant, that unless the judge in Case 2 imposed a sentence consecutive on that sentence, then the sentence in Case 2 was not going to result in a single day more being served as a result of the conviction. For the same reason any question of the commencement date of the sentence in Case 2 was somewhat academic, since whatever date was chosen (the date of conviction, 15th July, 2011, or the date he went into custody, both on remand on this charge, and to serve sentence on Case 1 (the 5th of February, 2010) or some date in between) the sentence in Case 2 would have expired before the expiry of the sentence in Case 1. In the circumstances, the imposition of the sentence must have appeared largely an exercise in marking the significance of a second conviction. No one now suggests that the sentence of four years imposed was excessive nor on the facts as they were on the date of that sentence, that the judge was in anyway in error not to backdate the sentence. If anything, there was an argument for a lengthier sentence or for making a short sentence consecutive on the first sentence. In substance therefore, it can be said that the trial judge on the information available to her made no error which would have required to be addressed by a Court of Appeal. If the appeal against severity was heard the following day it would, in all probability have been dismissed.


However, the convicted man appealed the conviction and sentence in both cases. In the events that transpired, he withdrew his appeal against conviction in Case 2, and by the time his appeal against severity was heard by the Court of Criminal Appeal on the 15th of July, 2013, the conviction and sentence in Case 1 had been quashed, and the complainant had informed the DPP that the previous trials (note the plural) had taken too much out of her physically and mentally and she wished to get on with her life and did not want to give evidence. Accordingly the DPP had indicated her intention enter a nolle prosequi.


Taking a more general view, it might seem obvious that since Case 2 was still within the Court system, that the Court of Criminal Appeal should have been able to address the justice of the situation by approaching the question of the appropriate sentence for the offence in Case 2 on the basis that there were no previous convictions and taking account of the fact that he had surrendered his bail and gone into custody on these charges, albeit at the same time at which he had been required to go into custody to serve his sentence on Case 1. This is a not necessarily an easy task, but it is one regularly encountered by sentencing courts. If for example, the sequence was slightly different and the quashing of the conviction and decision to enter a nolle prosequi in Case 1 had preceded the trial and sentence in Case 2, the sentence to be imposed in Case 2 would have posed little difficulty, particularly given the level of discretion exercisable by a judge who presided at the trial and heard the evidence and submissions in relation to the sentence. In principle it is difficult to see why the Court of Criminal Appeal should not have been in a position to do the same.


However, it appears that some of the difficulty in this case arose from an understanding that the decision in DPP v Cunningham required that an appellate court exercising jurisdiction in a criminal field, could not interfere with a sentence imposed unless an error of principle was identified. If so, then there was a difficulty since it was difficult, if not impossible to say that the trial judge had erred in principle. What rendered the sentence potentially unjust was something which occurred after the trial judge had imposed sentence and which she could not have been aware, that is the subsequent quashing of the conviction in Case 1.


It is the fate of even the most important judgments to be reduced to head notes then paraphrased in a few sentences in textbooks, later perhaps reduced to footnotes in texts, and finally pithy rules of thumb expressed by practitioners. In most cases these simplified versions of sometimes complex decisions are useful for courts and participants. The rule of thumb that it is necessary to identify an error of principle before a Court of Appeal can interfere with a sentence, is normally a concise and sufficient guide for a court. It is only rarely that it will be necessary to go behind it. However, almost every important general proposition can be pressed beyond its anticipated area of application with the possibility of error. While the student might yearn for a striking judgment enunciating the clear and straight line rule of general application, the reality of the law at appellate level is more often a process of ongoing adjustment with the statement of principle almost immediately followed by a qualification. The decision in Cunningham requires some careful scrutiny, explanation, and perhaps qualification. It is clear that the trial judge did not here err in principle given the state of the facts at the time she imposed judgment. Yet few I think would consider that a refusal to consider the appropriateness of that sentence in the light of the changed circumstances would be consistent with the administration of justice.


It is perhaps understandable, if indeed it is the case, that Cunningham came to be interpreted as a strict rule of identification of error in principle before it was possible to adjust a sentence. That followed in part from the terms of the certified question and in particular from the first portion of the answer italicised below:

‘Whether the Court of Criminal Appeal, in hearing an appeal or an application for leave to appeal against the severity of a sentence imposed by a court of trial, was strictly limited to considering the state of facts existing at the date when the sentence was imposed or whether it could receive evidence relating to events or facts subsequently occurring, as regards the behaviour of the applicant, his state of health or otherwise, which might be relevant if the Court were itself deciding on the correct sentence.’


This reading is, if anything, strengthened by the terms of the majority judgment, and the rationale underpinning it, which drew support from the separation of powers. It was said that the reconsideration of a sentence, correct when imposed, because of subsequent events rendering it more exceedingly harsh, was to confuse the appellate function with the executive power of clemency and indeed the scheme for remission for good behaviour. This strict reading is also reinforced by the fact that the majority judgment appeared to differ from a more...

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4 cases
  • DPP v Black
    • Ireland
    • Court of Appeal (Ireland)
    • 26 July 2019
    ...serving another sentence during the time he had been in custody on this offence. 16 The appellant relies upon People v. Colbert [2016] I.E.S.C. 69. We are satisfied that this case can be distinguished. Indeed, the appellant accepts that there is no principle that every sentence must be bac......
  • Lynn v DPP
    • Ireland
    • Court of Appeal (Ireland)
    • 31 May 2019
    ...arise in the substantive appeal as the credit for time served point and the 30-year sentence point. 22 In the case of DPP v. Colbert [2016] IESC 69, in the course of a joint judgment, Charleton and O'Malley JJ observed at para.17: ‘[t]here are a huge number of varied circumstances which ca......
  • DPP v S.T.
    • Ireland
    • Court of Appeal (Ireland)
    • 30 January 2017
    ...The Court's attention was drawn to a decision of the Supreme Court in a case of The People (Director of Public Prosecutions) v. Colbert [2016] IESC 69 (unreported, Supreme Court, 28th November 2016). In Colbert the Court of Criminal Appeal, having dismissed the appeal of Mr. Colbert against......
  • Director of Public Prosecutions v Dowdall
    • Ireland
    • Court of Appeal (Ireland)
    • 14 July 2023
    ...of issues that have arisen since trial. 12 . In the course of argument, the appellant referred to the case of DPP v. Colbert [2016] IESC 69. However, it must be said that that was a very different case. What was in issue there was that the appellant, when he came for sentence in the sentenc......

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