The State (White) v Martin

• Jurisdiction: Ireland
• Judge: HENCHY J.
• Judgment Date: 01 January 1977
• Neutral Citation: 1976 WJSC-SC 1458
• Docket Number: AFFIRMING HIGH-25.6.76
• Court: Supreme Court
• Date: 01 January 1977

1976 WJSC-SC 1458

THE SUPREME COURT

Henchy J.

Griffin J.

Parke J.

AFFIRMING HIGH-25.6.76

(127-1976)

State (WHITE) v. MARTIN

THE STATE (RICHARD WHITE)

v.

CIRCUIT JUDGE FRANK MARTIN

1 JUDGMENT OF HENCHY J. DELIVERED THE 21st OCTOBER 1976(nem diss)

2 This appeal is in the nature of a test case. It has been taken, we have been told, because the prosecuting authorities wish to get a ruling from this Court as to whether a Judge of the Circuit Court, when hearing an appeal from the District Court in a criminal case, is bound by the same sentencing limitations as are imposed on the District Court by s.5 of the Criminal Justice Act, 1951.

3 S. 5 (replacing s. 18 of the Criminal Justice Administration Act, 1914) is 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 twelve months".

4 It is common ground that the effect of this section is that while a District Justice may order a sentence of imprisonment to be served consecutively with a previously imposed term of imprisonment, that power is subject to the limitation that the aggregate of consecutive terms of imprisonment thus imposed by the District Court shall not exceed twelve months. What is in contention here is whether that limitation applies also when a Circuit Court Judge is hearing an appeal from the District Court.

5 Firstly, as to what happened in this case. Richard White, the prosecutor in these certiorari proceedings, was convicted and sentenced in the District Court on the 18th February 1976 in respect of fourteen offences. He was sentenced to twelve months imprisonment on each of twelve of those offences and to three months imprisonment of each of the other two, the sentences to be concurrent. On appeal to the Circuit Court, the two sentences of three months imprisonment were set aside, but he withdrew his appeals against the twelve concurrent sentences of twelve months imprisonment. So those twelve convictions and sentences were affirmed by an order of the Circuit Court dated the 6th July 1976.

6 White had already been convicted in the District Court, on the 25th August 1975, on a charge of assault. On this conviction he had been sentenced to twelve months detention in St. Patrick's Institution. He was so sentenced under s. 13(1) of the Criminal Justice Act, 1960, he being then not less than seventeen and not more than twenty-one years of age. On appeal to the Circuit Court that conviction and sentence were affirmed on the 12th March 1976, but it was ordered that the sentence should commence to run from the expiration of the cumulative sentence of twelve months imprisonment that had been imposed on the 18th February 1976, and which was then being served in Mountjoy Prison.

7 It is the latter sentence as thus varied in the Circuit Court that gave rise to the present certiorari proceedings. Contending that the Circuit Court judge had no jurisdiction to make such an order, White applied in the High Court for an order of certiorari to quash it. He was successful in that application, apparently on the ground that the imposition of a sentence of twelve months detention in St. Patrick's Institution, to run from the termination of current sentences of Imprisonment amounting cumulatively to twelve months duration, was in breach of the sentencing limitation set by s. 5 of the Criminal Justice Act, 1951. This appeal is taken from the order of McMahon J. in the High Court quashing the sentence of detention in St. Patrick's Institution.

8 If the order quashed had imposed a sentence of imprisonment (rather than detention in St. Patrick's Institution) which was to run from the termination of the then current cumulative tern of twelve months imprisonment, I have no doubt that it would have breached the limitation set by s.5 of the Criminal Justice Act, 1951. It would have been no answer to say that the order was made by the Circuit Court and not by the District Court. S.5 applies equally to both Courts. Where a statute confers an appellate jurisdiction on a court, that appellate jurisdiction is to be exercised within the jurisdictional limits of the court appealed from û at least unless there is a statutory provision to the contrary. Whether the case be civil or criminal, the Circuit Court exercises its appellate jurisdiction within the same limits as circumscribe the jurisdiction of the District Court. It gives the case a fresh hearing at the instance of the appellant, but the order it makes on that hearing must be one that could have been validly made in the District Court. Therefore, the Circuit Court when hearing an appeal from the District Court in a criminal case may not impose, by way of confirmation, variation or otherwise, a sentence which exceeds that allowed by s. 5 of the Criminal Justice Act, 1951.

9 This conclusion, however, does not resolve this case. The Circuit Court order in question here did not exercise, or purport to exercise, the power conferred or recognized by s. 5. That power is a power to impose a sentence of imprisonment which is to commence on the expiration of another term of imprisonment. But that is something the impugned order did not attempt to do. It did not purport to impose any sentence of imprisonment. What it did was to affirm a sentence of twelve months detention in St. Patrick's Institution...