The State (Clinch) v Connellan
| Jurisdiction | Ireland |
| Judge | Finlay C.J.,Henchy J.,Griffin N.,McCarthy J. |
| Judgment Date | 01 January 1986 |
| Neutral Citation | 1985 WJSC-SC 1036 |
| Docket Number | [S.C. No. 270 of 1984] |
| Court | Supreme Court |
| Date | 01 January 1986 |
1985 WJSC-SC 1036
The Supreme Court
Finlay C.J.
Henchy J.
Griffin J.
Hederman J.
McCarthy J.
Citations:
AG, PEOPLE V BOYLAN 1963 IR 238
CONSTITUTION ART 38
CRIMINAL JUSTICE ACT 1951 S5
CRIMINAL JUSTICE ACT 1960 S10(1)
CRIMINAL JUSTICE ACT 1960 S13(1)
CRIMINAL JUSTICE ACT 1960 S2(1)
CRIMINAL JUSTICE ACT 1960 S3(1)
CRIMINAL JUSTICE ACT 1964 S1
CRIMINAL JUSTICE ACT 1984 S12(1)
CRIMINAL LAW (JURISDICTION ACT) 1976 S6
LARCENY ACT 1916 S2
LARCENY ACT 1916 S23(a)
MAXWELL INTERPRETATION OF STATUTES 12ED P69
PRISONS ACT 1970
SHEERIN, STATE V KENNEDY 1966 IR 379
ST PATRICK'S INSTITUTION REGS 1960 SI 224/1960 REG 4
WHITE, STATE V MARTIN 111 ILTR 21
Synopsis:
CRIMINAL LAW
Sentence
Detention - Validity - Youthful offender - Two convictions and sentences - Each sentence being 12 months detention in St. Patrick's Institution - Second sentence being a consecutive sentence - Second sentence imposed validly by District Justice - Section 12, sub-s. 1, of Criminal Justice Act, 1984, not enacted at relevant time - Criminal Justice Act, 1951, s. 5 - Criminal Justice Act, 1960, s. 13 - (270/84 - Supreme Court - 29/7/85).
The State (Clinch) v. Connellan
Judgment delivered on the 29th day of July 1985by Finlay C.J. [Hederman Concurring]
This is an appeal brought by the Respondent, District Justice Peter A. Connellan, against an Order made by D'Arcy J. in the High Court on the 8th October 1984, making absolute a Conditional Order of Certiorari granted to the Prosecutor on the 25th June 1984. The Prosecutor was, on the 13th March 1984 convicted of two offences, the first being an offence of larceny contrary to Section 2 of the Larceny Act 1916, and the second being an offence of entering as a trespasser a building and stealing therein, contrary to Section 23(a) of the Larceny Act 1916, as inserted by Section 6 of theCriminal Law (Jurisdiction) Act 1976. The learned District Justice imposed on him in respect of these offences a period of detention of twelve months in St. Patrick's Institution on the first charge, and a period of twelve months in the same institution to be served on the legal expiration of the sentence imposed for the first offence.
The sole issue which arises on this appeal is as to whether it was within the jurisdiction of the learned District Justice to impose upon the prosecutor two consecutive periods of detention in St. Patrick's Institution which aggregated to more than twelve months.
The relevant statutory provision which affects this issue is, firstly, Section 13(1) of the Criminal Justice Act 1960which reads as follows:
"Where a person who is not less than seventeen and not more than twenty-one years of age is convicted of an offence for which he is liable to be sentenced to a term of penal servitude or imprisonment, he may, in lieu of being so sentenced, be sentenced to be detained in St. Patrick's Institution for a period not exceedingthe term for which he might have been sentenced to penal servitude or imprisonment, as the case may be."
This subsection is contained in a Statute which introduced for the first time for young offenders detention in St. Patrick's Institution.
The subsection was considered by the Court of Criminal Appeal in ThePeople (The Attorney General) v. Boylan 1983 I.R., where ÓDálaigh, C.J., delivering the judgment of the Court stated with regard to its interpretation:
"..... the Court considers that the better view is that the Section does not authorise a sentence of institutional detention of greater duration than the term of penal servitude or imprisonment which the Court would, in the particular case, think fit to impose. That is to say, a judge applying Section 13 should first determine what term of penal servitude or imprisonment he would impose for this offence and in substituting institutional detention for such penal servitude or imprisonment that term must not be exceeded."
I would accept this interpretation of Section 13(1)of the Act of 1960 as being correct and I am, of course, prepared to follow it.
The difficulty which arises, however, in its application to this particular case is to interpret it in the light of Section 5 of the Criminal Justice Act 1951.
That Section reads as follows:
"Where a sentence of imprisonment is passed on any person by the District Court, the Court may order that the sentence shall commence at the expiration of any other term of imprisonment to which that person has been previously sentenced so, however, that where two or more sentences passed by the District Court are ordered to run consecutively, the aggregate term of imprisonment shall not exceed twelvemonths."
This Section clearly does not apply directly to the imposition or ordering of a period of detention in St. Patrick's Institution which was a power first granted to the District Court after the passing of the Act of 1951.
The question which arises, however, is as to whether it is possible to say that a District Justicewho, if he were imposing sentences of imprisonment on the two charges of which the Prosecutor had been convicted before him, would be confined to an aggregate of twelve months, could, in the terms of the interpretation of Section 13(1) of the 1960 Act, properly reach the conclusion that two consecutive periods of detention totalling twenty-four months, did not exceed the term of imprisonment he would have imposed for the offence were he not of the opinion that detention was a preferable penalty.
Section 13(1) of the Act of 1960 is a statutory provision giving to the Courts, including the District Court, a new jurisdiction to impose a form of penalty, namely, detention in St, Patrick's Institution. As such, notwithstanding the fact that that may have been considered by the Legislature to be a somewhat less stringent penalty than imprisonment or penal servitude, it is a Section which must be strictly construed, being a Section expressly authorising the deprivation of a person'sliberty.
So construing Section 13 and accepting the interpretation of it in The D.P.P. v. Boylan, I am satisfied that it cannot be construed as permitting a District Justice to impose on a person convicted before him a period of detention in St. Patrick's Institution which exceeds either what he would or could have imposed upon the same person in the same circumstances, had he been imposing a sentence ofimprisonment.
There are only two possible constructions of Section 13(1) which would permit such a course of conduct by a District Justice. The first is to consider what sentence of imprisonment he feels is appropriate to the case, irrespective of any particular restrictions imposed on him in the District Court, and the second is to construe the provision contained in the impugned order in this case of a consecutive sentence not to be part of the sentence but merely to be an ancillary or a consequentialorder.
Neither of these two constructions seems to me consistent with a strict interpretation of Section 13(1).
The District Justice in order to have assumed jurisdiction to deal with these two charges against the Prosecutor had to come to the conclusion, as indeed is recited in the Orders of conviction and sentence that in each case the facts alleged were such as to constitute a minor offence fit to be tried summarily. It does not seem to me consistent with that necessary prerequisite to his jurisdiction that when he came to the conclusion that detention was an appropriate penalty or order to make that he should, as it were, put himself in the shoes of a Circuit Court judge who would not be confined by the necessity of reaching such an appraisal of the facts alleged and dealing with the case as if he were freed from the statutory provisions limiting the imposition of periods of imprisonment in the District Court.
With regard to the second possible construction it seems to me inconsistent with the ordinary and plain meaning of "the sentence" that it should ignore or be divorced from the question as to whether any particular sentence imposed is a consecutive or a concurrent sentence.From the point of view of the person on whom sentences are imposed and who is by reason of them being deprived of his liberty, whether it be under an order of penal servitude by way of imprisonment or by way of detention, the vital matter is the total or aggregate period during which he is so deprived of his liberty. It seems to me that that is what constitutes in the understanding of ordinary people, "the sentence imposed upon him" and that it would be doing violence to the ordinary meaning of the words contained in Section 13(1) of the Act of 1960 to construe the sentence as the period of detention only, ignoring in its entirety its consecutive nature.
I would, therefore, be driven to the conclusion that a District Justice in exercising the powers conferred on him by Section 13(1) of the Act of 1960 is confined by three parameters.
These are, firstly, the maximum sentence of imprisonment permitted by law in respect of the offence of which the accused in convicted. Secondly, the maximum sentence to which the accused can be sentencedby the District Court in respect of the offence of which he has been convicted, which includes, in my view, the restriction imposed by Section 5 of the Criminal Justice Act 1951on the maximum aggregate term of consecutive sentences of imprisonment. Thirdly, the parameter of what he, the District Justice, would, were he imposing a sentence of imprisonment instead of directing a period of detention, have considered appropriate, having regard to all the circumstances of the case.
In effect, the least of all...
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