The State (Payne) v Clifford

• Jurisdiction: Ireland
• Judge: Finlay P.,
• Judgment Date: 01 January 1985
• Neutral Citation: 1984 WJSC-HC 2676
• Docket Number: No. 668 S.S./1983
• Court: High Court
• Date: 01 January 1985

1984 WJSC-HC 2676

No. 668 S.S./1983

STATE (PAYNE) v CLIFFORD

THE STATE AT THE PROSECUTION OF ANTHONY PAYNE

.v.

DISTRICT JUSTICE JOHN P. CLIFFORD

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Subject Headings:

DISTRICT COURT: jurisdiction

CRIMINAL LAW: sentence

1 Judgment of Finlay P.,delivered on the 12th day of March 1984.

2 This is an Application to make absolute notwithstanding cause shown a Conditional Order of Certiorari granted by The High Court on the 21st of November, 1983 in respect of the conviction and sentencing by the first-named Respondent of the Prosecutor at Cork District Court on the 26th of July, 1983 in respect of twenty-one charges of larceny and three charges of malicious damage.

3 On that date the prosecutor was found guilty of all these twenty-four offences and was sentenced to be imprisoned for a period of twelve months in respect of each of the convictions for larceny and for a period of six months in respect of each of the convictions of malicious damage, all the sentences to run concurrently.

4 The grounds on which the Conditional Order of Certiorari were granted were that the learned Respondent in imposing the sentences had acted in excess of the jurisdiction imposed on him by Section 5 of the Criminal Justice Act, 1951.

5 The material facts which are not in dispute are that prior to the 26th of July, 1983 the Prosecutor had on the 1st of March, 1983 been convicted of an offence of burglary and two other charges under the Larceny Act and sentenced to be imprisoned for a period of twelve months. From that conviction which was in the Cork District Court, the Prosecutor appealed to the Cork Circuit Court and on the 12th day of May, 1983 his appeal was dismissed, he having failed to appear and the conviction and sentence of the DistrictCourt were accordingly affirmed. A warrant having issued in respect of that sentence it was executed by lodging the Prosecutor in prison on the 28th day of June, 1983.

6 On the 12th of July, 1983 the Prosecutor again appeared in the Cork District Court and was convicted of having taken a motor vehicle without the consent of the owner and was sentenced to a period of three monthsimprisonment.

7 In the Affidavit grounding this Application, the Solicitor on behalf of the Prosecutor deposes to the fact that he drew to the attention of the learned District Justice at the hearing of the 26th of July, 1983 that his client was already serving two sentences, one of twelve months and one of three months, and that accordingly if he were sentenced by the learned District Justice to a further period of twelve months that he would in aggregate eventually serve a period in excess of twelve months the excess apparently being approximately a month. He submitted to the learned District Justice at the hearing, that this was in breach of Section 5 of the Act of 1951.

8 The provisions of Section 5 of the Criminal Justice Act, 1951are 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."

9 Considering the interpretation of this Section, freed from any authority, it would seem clearly to effect in an unambiguous fashion, certain results. They are:-

10 (a) Conferring upon the District Court the jurisdiction to directthata sentence shall commence at the expiration of any other term of imprisonment to which a convicted person has previously beensentenced;

11 (b) Restricting that power to impose what is ordinarily known as a consecutive sentence by prohibiting the consequences of such an Order from imposing an aggregate term of imprisonment which exceeds twelvemonths.

12 By Section 41 of the, same Act as amended by Section 3 and the Schedule of the Criminal Procedure Act, 1967, the general restriction on the imposition of a sentence in excess of twelve months by the District Court is now contained...